George Floyd’s Family Sues City of Minneapolis and Four Ex-Officers Involved in His Death      

On July 15, attorneys for the family of George Floyd (by their trustee Kaarin Nelson Schaffer, a Minnesota attorney and resident of Hennepin County) sued the City of Minneapolis and the four ex-police officers involved in Floyd’s death—Derek Chauvin, Tou Thao, Thomas Lane and J. Alexander Kueng.[1]

Here we will review the public announcement of the case by the lead plaintiff’s lawyer, Ben Crump, the names of the other 11 plaintiff’s attorneys and the background of U.S. District Judge Susan Richard Nelson, who will preside over this case.

The 40-page Complaint has three counts. “Count I—42 U.S.C. §1983—Fourth Amendment Violations” is asserted against the four ex-policemen while counts II and III are against the City of Minneapolis: “Count II– 42 U.S.C. §1983—Monell Liability” and “Count III–42 U.S.C. §1983—Canton Liability.” A subsequent post will dive into the details of these counts.[2]

Attorney Crump’s Statement

“This is a crisis in Black America — a public health crisis. While all of America is dealing with the public health crisis of the coronavirus pandemic, Black America has to deal with another public health pandemic of police brutality. This is a teachable moment for America.”

In addition to the misconduct for the four ex-policmen, the lawsuit alleges that local officials “with deliberate indifference” have failed to correct the police department’s dangerous arrest practices and train officers properly in the use of force.

“This complaint shows what we have said all along, that it was not just the knee of officer Derek Chauvin on George Floyd’s neck. But it was the knee of the entire Minneapolis Police Department on the neck of George Floyd that killed him. The City of Minneapolis has a history of policies, procedures and deliberate indifference that violates the rights of arrestees, particularly Black men, and highlights the need for officer training and discipline.”

While not specifying how much the family will seek in compensation, Crump said, “This is an unprecedented case, and with this lawsuit we seek to set a precedent that makes it financially prohibitive for police to wrongfully kill marginalized people — especially Black people — in the future.” In short, the case is “the tipping point for policing in America.”

Crump said that how the city leaders react to the demands put forth by the Floyd family lawyers will have consequences. “Their political legacy will be defined by how they respond,” he said.

Other attorneys for the Floyd family, Antonio M. Romanaucci and L. Chris Stewart, also spoke . Ms. Stewart said,  “The Floyd family deserves justice for the inhumane way in which officers with the Minneapolis Police Department killed Mr. Floyd. The city has a responsibility to acknowledge the history and practices of excessive force and impunity with its police force, as well as shortfalls in officer training and discipline.”

Plaintiffs’ Lawyers[3]

The following two Minnesota attorneys are on the Complaint for the plaintiff: Jeffrey S. Storms of the law firm of Newmark Storms Dworak LLC and Michelle R. Gilboe of the law firm of Lewis Brisbois Bisgaard & Smith LLP. In addition, there are the following ten other attorneys for the plaintiff who are not Minnesota attorneys and, therefore, will have to be permitted to participate in this case (pro hac vice) by the Court:

  • Ben Crump of the Ben Crump Law firm of Washington, D.C.
  • Antonio M. Romanaucci, Bhavani Raveendran and Nicolette A. Ward of the Chicago law firm of Romanucci & Blandin, LLC.
  • William Pintas and Laura Mullins of the Chicago firm of Pintas and Mullins Law Firm;
  • Devon M. Jacob of the Jacob Litigation, Inc. firm of Mechanicsburg, PA;
  • Chris Stewart and Justin Miller of the Stewart Trial Attorneys firm of Atlanta, GA; and
  • Scott Masterson of the Minneapolis firm of Lewis Brisbois Bisgaard & Smith, LLP.

Judge Susan Richard Nelson[4]

The case was randomly assigned by the Clerk of Court to the 68 year-old District Judge Susan Richard Nelson, who served as U.S. Magistrate Judge for the District of Minnesota, by appointment of the Court’s judges, June 12, 2000, until she was confirmed as a U.S. District Judge of that court on December 22, 2010, upon recommendation of U.S. Senator Amy Klobuchar, nomination by President Barack Obama and unanimous confirmation by the U.S. Senate. She obtained her B.A. degree with high honors from Oberlin College and her J.D. degree from the University of Pittsburgh Law School. Her initial professional employment was with a Pittsburgh law firm (1977-80) and a New Haven, Connecticut law firm (1980-1983). In 1984 she moved to Minnesota and joined the Minneapolis law firm of Robins, Kaplan, Miller & Ciresi as an associate (1984-88) and then was promoted to partner (1988), where she served until she became a U.S. Magistrate Judge. At the Robins firm, her practice focused on civil trial practice involving complex product liability and mass tort lawsuits.

Conclusion

 After subsequent posts that will examine the details of the three counts of the Complaint, we will await to see what attorneys will be representing the defendants, any potential motions attacking the complaint and the rigors of pretrial discovery (requests for production of documents and responses, written interrogatories and responses, requests for admissions and responses and oral depositions) followed by any possible motions for summary judgment and decisions thereon. Then the case would move to trial. Of course, settlements are always a possibility at any point during this complex (and expensive) process.

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[1] Reuters, George Floyd’s Family Sues Minneapolis and Four Officers Over His Death, N.Y. Times (July 15, 2020); Assoc. Press, Floyd Family Sues Minneapolis Officers Charged in His Death, N.Y. Times (July 15, 2020); Bailey, George Floyd’s family files wrongful-death lawsuit against City of Minneapolis and former officers, Wash. Post (July 15, 2020); Furst & Walsh, George Floyd family sues city of Minneapolis, officers involved citing ‘reckless disregard’ of civil rights, StarTribune (July 15, 2020); Treisman, George Floyd’s Family Files Civil Lawsuit Against Minneapolis And Police, Lawyers Say, MPR News (July 15, 2020); Attorney Ben Crump To File Civil Rights Lawsuit For Floyd’s Family, CBS Minnesota (July 15, 2020) (video of much of Crump’s statement).

[2] Complaint, Schaffer v. Chauvin, Case No, 0.20-cv-01577-SRN-TNL (D. Minn. July 15, 2020). Read the lawsuit filed by family of George Floyd against Minneapolis, four ex-police officers, StarTribune (July 15, 2020).

[3] Complaint at 38-40.

[4] Susan Richard Nelson, Wikipedia; Off the Cuff with Judge Susan Richard Nelson, The Oberlin Review (July 15, 2020).

Congress Fails To Pass Federal Police Reform Bills   

On June 24 and 25, the divisions between the Republican-controlled U.S. Senate and the Democrat-controlled U.S. House again emerged, this time to prevent, in all likelihood, the adoption of any federal police reform bills this year.

U.S. Senate[1]

On June 24 the Senate was prepared to debate The Justice Act, a bill authored by Senator Tim Scott (Rep., SC), that would encourage state and local police departments to change their practices, by limiting the use of chokeholds, requiring new de-escalation training for officers and better systems for tracking misconduct  and penalizing departments that did not require the use of body cameras. It, however,  would not alter the qualified immunity doctrine that shields officers from lawsuits or place new federal restrictions on the use of lethal force.

The Senate Democrats criticized this bill as insufficient to respond to the problem of systemic racism in law enforcement as the basis for an objection to consideration of the bill. This forced a motion for consideration that, under Senate rules, needs at least 60 votes to pass, but only had 55 votes with Democrats Doug Jones of Alabama and Joe Manchin III of West Virginia and Independent Angus King of Maine joining 52 Republicans. Majority Leader Mitch McConnell (Rep., Tenn.) voted against that motion so that subsequently he could make a motion for reconsideration by announcing his intent to switch his vote.

After this defeat, Senator Scott stated on the floor that he had had offered to give Democrats as many as 20 votes on proposed modifications to his bill that they were demanding, but that they had refused to accept. Privately, Democrats noted that revising the bill would have also required the approval of 60 senators, a threshold they feared they would not be able to meet.

It is still possible that the Scott bill could be brought up again this year in the Senate by the Majority Leader, Senator Mitch McConnell switching his vote from “Yes” to “No” on a motion for reconsideration.

In the meantime, on June 25 the Senate by unanimous consent separately passed a provision of Mr. Scott’s bill to establish a commission on the social status of black men and boys, tasked with recommending policies to improve government programs.

U.S. House[2]

 On June 25, the U.S. House passed, 236-181, the George Floyd Justice in Policing Act.

Representative Karen Bass (Dem., CA), the lead sponsor of the bill, said, “The legislation is the first-ever bold, comprehensive approach to hold police accountable, change the culture of law enforcement, empower our communities, and build trust between law enforcement and our communities by addressing systemic racism and bias to help save lives. Congressional Black Caucus Chair Karen Bass (D-CA), Senators Cory Booker (D-NJ) and Kamala Harris (D-CA), and House Judiciary Committee Chair Jerrold Nadler (D-NY) introduced the George Floyd Justice in Policing Act of 2020 on June 8, 2020. The legislation has 231 cosponsors in the House and 36 cosponsors in the Senate.”

“Under the George Floyd Justice in Policing Act, for the first time ever federal law would: 1) ban chokeholds; 2) end racial and religious profiling; 3) eliminate qualified immunity for law enforcement;[3] 4) establish national standard for the operation of police departments; 5) mandate data collection on police encounters; 6) reprogram existing funds to invest in transformative community-based policing programs; and 7) streamline federal law to prosecute excessive force and establish independent prosecutors for police investigations.”  In greater detail, the Act:

  • “Prohibits federal, state, and local law enforcement from racial, religious and discriminatory profiling, and mandates training on racial, religious, and discriminatory profiling for all law enforcement.
  • Bans chokeholds, carotid holds and no-knock warrants at the federal level and limits the transfer of military-grade equipment to state and local law enforcement.
  • Mandates the use of dashboard cameras and body cameras for federal offices and requires state and local law enforcement to use existing federal funds to ensure the use of police body cameras.
  • Establishes a National Police Misconduct Registry to prevent problematic officers who are fired or leave on agency from moving to another jurisdiction without any accountability.
  • Amends federal criminal statute from “willfulness” to a “recklessness” standard to successfully identify and prosecute police misconduct.
  • Reforms qualified immunity so that individuals are not barred from recovering damages when police violate their constitutional rights.
  • Establishes public safety innovation grants for community-based organizations to create local commissions and task forces to help communities to re-imagine and develop concrete, just and equitable public safety approaches.
  • Creates law enforcement development and training programs to develop best practices and requires the creation of law enforcement accreditation standard recommendations based on President Obama’s Taskforce on 21st Century policing.
  • Requires state and local law enforcement agencies to report use of force data, disaggregated by race, sex, disability, religion, age.
  • Improves the use of pattern and practice investigations at the federal level by granting the Department of Justice Civil Rights Division subpoena power and creates a grant program for state attorneys general to develop authority to conduct independent investigations into problematic police departments.
  • Establishes a Department of Justice task force to coordinate the investigation, prosecution and enforcement efforts of federal, state and local governments in cases related to law enforcement misconduct.”

It would make lynchings a federal hate crime, ban federal officials from using chokeholds, ban federal funds to state and local law enforcement agencies that do not bar chokeholds, bar law enforcement from racial and religious profiling, make it easier to prosecute police officers for misconduct and allow civilians to recover some damages if their constitutional rights are found to have been violated by police, a change to the judicial doctrine known as qualified immunity.

It should be noted that three Republican representatives voted for this bill: Brian Fitzpatrick (PA), Will Hurd (TX) and Fred Upton (MI).

 Conclusion

As a Democrat you supports various means of reforming policing in the U.S., I am disappointed that the Congress was unable to agree on such measures.

However, I think it was a political mistake for the Senate Democrats to block consideration of the Senator Tim Scott reform bill. As I understand what happened in the Senate, the Democrats had no objections to the bill’s provisions. Instead, they objected that the bill did not go far enough. Their objections could have been made during the debate on the Scott bill, with or without proposed amendments that probably would be defeated by the Republican majority. Moreover, by allowing the Republicans to approve the bill would allow the Democrats to provide political support to Republican Senator Tim Scott.

This assessment was shared by Marc A. Thiessen, a fellow of the conservative American Enterprise Institute, a former speechwriter for President George W. Bush, a Fox News contributor and a Washington Post columnist,  He emphasized that stopping such a debate in the Senate eliminated the possibility of having such a discussion in that body for the foreseeable future and even the possibility of having some Democratic amendments adopted. Thiessen claims that the bill already included some Democratic proposed additions: making lynching a federal hate crime, creating a national policing commission to review the U.S. criminal justice system, barring chokeholds by federal officers, withholding federal funds from state and local law enforcement agencies that do not bar chokeholds and that do not report use of non-knock warrants to the U.S. Justice Department. Indeed, according to Thiessen, Senator Scott had said he would vote to support  some of the proposed amendments.[4]

Such a Democratic strategy also would have avoided the embarrassing comment by Senator Richard Durbin (Dem., IL) that the Scott bill was “a token, half-hearted approach,” by an African-American man who personally had experienced police discrimination that compelled the subsequent apology from Senator Durbin.

Moreover, the Democrat-controlled House the next day adopted the more comprehensive reform bill which they wanted and which the Republican-controlled Senate undoubtedly will reject when it goes there.

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[1] U.S. Senate, Justice Act, 116th Congress, 2d Sess. (full text); U.S. Senate, JUSTICE Act (Just and Unifying Solutions to Invigorate Communities Everywhere): Section-by-Section Analysis,  116th Congress, 2d Sess.; Senator Scott, Press Release: Senator Tim Scott Delivers Fiery Speech on Senate floor After Senate Democrats Stonewall Legislation on Police Reform Across America (June 24, 2020); Senator Scott, Press Release: Senate Democrats Block Police Reform from Coming to Communities Across America (June 24, 2020); Edmondson & Fandos, Senate G.O.P. Unveils Narrow Policing Bill, Setting Up a Clash with Democrats, N.Y. Times (June 17 & 24, 2020); Edmondson, Senate Democrats Block G.O.P. Police bill, calling It Inadequate, N.Y.Times (June 24, 2020); Kim, Senate Democrats block GOP policing bill, stalling efforts to change law enforcement practices, Wash. Post (June 24, 2020); Balko, Both parties’ police reform bills ae underwhelming. Here’s why, Wash. Post (June 24, 2020); Peterson & Zitner, Senate Democrats Block GOP Policing Bill, W.S.J. (June 24, 2020); Editorial, The No Debate Democrats, W.S.J. (June 24, 2020); Bobi, Police Reform Stalls Out in The Senate, HuffPost (June 24, 2020).

[2] Representative Bass, Press Release: House Passes George Floyd Justice in Policing Act (June 25, 2020); George Floyd Justice in Policing Act (full text);  Congressional Black Caucus, Fact Sheet: George Floyd Justice in Policing Act ; House Passes George Floyd Justice in Policing Act, N.Y. Times (June 25, 2020); Andrews, House Passes Democrats’ Policing Bill, but No Path Seen for Deal, W.S.J. (June 25, 2020); Carney, Gridlock mires chances of police reform bill, The Hill (June 25, 2020); Brufke, Three GOP lawmakers vote for Democrat-led police reform bill, The Hill (June 25, 2020).

[3] The qualified immunity defense was established by the U.S. Supreme Court in Monell v. Department of Social Services (1978) that victims can’t recover damages from the city under the Civil Rights Act of 1871 unless the police misconduct was a breach of an “official policy or custom.” Subsequent Supreme Court cases have reaffirmed that standard to limit liability to “the plainly incompetent” and “those who knowingly violate the law.” (Malley v. Briggs (1986); Mccleary v. Navarro (1982), and just this month the Court refused to hear current cases challenging that standard. (Reuters, Supreme Court Rejects Cases Over ‘Qualified Immunity’ for Police, N.Y. times (June 15, 2020).)  As Peter Schuck, a professor emeritus at Yale Law School, pointed out, a simple amendment of that 1871 statute would eliminate this defense. (Schuck, The Other Police Immunity Problem, W.S.J. (June 24, 2020).) 

[4] Theissen, Democrats’ shameful vote against Tim Scott’s police reform bill, Wash. Post (June 25, 2020).

 

Pandemic Journal (# 24): What We Are Learning in the Pandemic

Peggy Noonan, a Wall Street Journal columnist, offers her thoughts on what we are learning in the coronavirus pandemic. Here are her main points along with reactions thereto.

Noonan’s Observations[1]

She says we have learned a lot. “How intertwined and interconnected our economy is, how provisional, how this thing depended on that. And how whisperingly thin were everybody’s profit margins. The well-being of the West Side block depends on human traffic, which depends on restaurants and bars, which depend on the theater being open. It was a George Bailey economy: every man on that transport died. Harry wasn’t there to save them, because you weren’t there to save Harry.” [2] “Every economy is, in the end, and if you’re interested in economics you knew this, but not the way you know it after the business catastrophe of 2020.”

“But the biggest things I suspect we learned were internal. No matter what you do for a living, when you weren’t busy introspection knocked on the door and settled in. Two different men, professionals, both blinked with surprise as they reported, unasked, that they can’t believe they have their college-age kids home again and they’re all together and they have dinner every night and play board games. They were so grateful. They had no idea this was possible, that it would make them so happy. That it had been missing.”

“People have suffered. They’ve been afraid. The ground on which they stand has shifted. Many have been reviewing their lives, thinking not only of ‘what’s important’ or ‘what makes me happy’ but ‘what was I designed to do?’ They’ve been conducting a kind of internal life review, reflecting on the decision that seemed small and turned out to be crucial, wondering about paths not taken, recognizing strokes of luck. They’ve been thinking about their religious faith or lack of it, about their relationships. Phone calls have been longer, love more easily expressed, its lack more admitted.”

“It has been a dramatic time. We have stopped and thought about our lives, and our society’s arrangements. We have applauded together, for the first time, those whose jobs kept our towns up and operating, from nurses to truckers. We’ve rethought not only what is ‘essential’ but who is important. All this will change you as a nation.”

“Here is what I am certain of. We will emerge a plainer people in a plainer country, and maybe a deeper one. Something big inside us shifted.”

“[Y]ou can almost hear people thinking eh, our time is finite, our money limited—maybe that’s not gray[hair]. it’s silver. . . . I like the simplicity of this.”

“The world has admired and imitated America’s crisp chic, but I see an altering of the national style. For reasons economic and existential a new simplicity is coming, glitz leaving.”

“We’re getting pared down. We’re paring ourselves down.”

‘The pioneer genes shall prevail, and women will focus on the essentials: nurturing their children in the arc of safety (homes and schools) providing food (driving to breadlines and food banks) and making do with what is already in the closet. Everything old will be suddenly new again.”

“America is about to become a plainer place. Maybe a deeper one, too. Maybe that’s good.”

Reflections

Do you agree with any of these observations?

Some of her reflections concern individuals and every-day life. I certainly hope that “America is about to become a ‘plainer place’ and ‘a deeper one.’”

Economically we certainly should have learned “how intertwined and interconnected our economy is, how provisional, how this thing depended on that. And how whisperingly thin were everybody’s profit margins.”

Noonan, however, fails to mention the big economic lessons of the pandemic for me and many others: the immense economic inequality in the U.S.; the many ways of racial injustice in the U.S.; and our horrendous health-care system. All of these problems require government action.

That, in turn, raises my concern over the future impact of the many, young, conservative federal judges who recently have been confirmed by the U.S. Senate, some in the midst of the pandemic, pursuant to Majority Leader Mitch McConnell’s agenda.[3]

More generally, the need for government action emphasizes my belief that many aspects of the U.S. system of government are obsolete: the Electoral College; every state having two senators with equal voting rights regardless of the state’s population; the U.S. Senate’s filibuster rule; the horribly complicated system of voting and its manipulation to suppress voting, including President Trump’s recent rantings against voting by mail.[4]

The Trump Administration’s inconsistent and wavering foreign  policies before and during the pandemic raise the question of what will become of the international system of institutions, treaties and laws that the U.S. helped to create after World War II to foster and preserve peace and human rights. In my opinion, we should be leading the world in reforming and modernizing this system, not tearing at its roots.[5]

All of these larger issues raise the issue of what can one individual do about them.

My answer. Carefully review candidates for office and vote for those who promise to work on these problems. Provide financial support to political parties and candidates as well as organizations that are supporting these reform measures. Advocate for individuals, organizations and policies involved in this effort.  (I choose to do my advocacy with this blog.)

Noonan appropriately mentions many people expressing gratitude for simple things in the midst of the pandemic. I  have gratitude for my wife, sons, their families and I being in good health and for my wife and I are not living in a senior-citizen retirement home. I am grateful for being retired with good savings and thus not worrying about keeping my job or finding a new one or about how I will be able to pay for food or the mortgage.[6]

I also am grateful for friends and family and have made efforts to reconnect with them.[7]

Like Noonan, I hope that people are “reviewing their lives, thinking not only of ‘what’s important’ or ‘what makes me happy’ but ‘what was I designed to do?’ They’ve been conducting a kind of internal life review, reflecting on the decision that seemed small and turned out to be crucial, wondering about paths not taken, recognizing strokes of luck.”

For a Christian, this means discerning your calling for a particular time and place and recognizing that your calling may change over time. This includes forgiving others for their wrongs as well as praying for forgiveness for your own misdeeds.[8]

I trust that I will continue learning about the world during this pandemic. Another of the many subjects I have learned something about are prior pandemics, especially the Flu Pandemic of 1918. [9]

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[1] Noonan, A Plainer People in a Plainer Time, W.S.J. (May 22, 2020).

[2] Noonan apparently refers to brothers George and Harry Bailey, characters in the movie “It’s a Wonderful Life.” George was a wealthy banker who suffers various difficulties, including not being present to save his brother from drowning. As  a result, George contemplates suicide before being rescued by his guardian angel and friends. (It’s a Wonderful Life, Wikipedia.)

[3] E.g., Hulse, McConnell Has a Request for Veteran Federal Judges: Pleases Quit, N.Y. Times (Mar. 16, 2020; Hulse, Trump Picks McConnell Protégé for Influential Appeals Court Seat, N.Y. Times (April 3, 2020).

[4] See, e.g., these entries in dwkcommentareis.com: Search: filibusterU.S. Needs More Democratization (Feb. 14, 2020); Responses to Ezra Klein’s Democratization Thesis (Feb. 15, 2020); Open Letter to U.S. Senate from 70 former Senators (Feb. 29, 2020); Pandemic Journal (# 10): Wisconsin’s  Primary Election (April 10, 2020) (and comments thereto).

[5] E.g., Douthat, The End of the New World Order, N.Y. Times (May 23, 2020).

[6] See, e.g., these posts to dwkcommentaries.com: Gratitude I (Mar. 15, 2012);  Gratitude II (April 11, 2012); Gratitude III (April 12, 2014); Another Perspective on Gratitude; (Nov. 23, 2015); Other Thoughts About Gratitude. (Nov. 26, 2015).

[7] Pandemic Journal (# 8): Reconnecting with Family and Friends (April 8, 2020).

[8] See, e.g., these posts to dwkcommentaries.com: The Roads Not Taken (April 27, 2011); My General Thoughts on Vocation (Feb. 6, 2014); Other Scriptural Passages About Vocation (Feb. 17, 2014); My Vocations (Feb. 23, 2014); Why I do Not Want to Die at 75 (Sept. 25, 2014); What Is Your Call Story? (Feb. 28, 2019); My Call Stories (Mar. 4, 2019). See also List of Posts to dwkcommentaries—Topical: RELIGION; A Christian-Muslim Conversation About Forgiveness (May 15, 2017).

[9] See, e.g., the following posts to dwkcommentaries.com: Pandemic Journal (# 3): 1918 Flu (Mar. 27, 2020); Pandemic Journal (# 22): Other Reflections on the Flu Pandemic of 1918-1920 (May 17, 2020).

 

 

 

Pandemic Journal (# 20): Oprah Winfrey’s Challenge to the Pandemic Classes of 2020   

On May 15, Oprah Winfrey gave an inspiring online commencement address to all graduating high school and college members of the classes of 2020, the pandemic classes. Here is what she said.[1]

“[N]ever has a graduating class been called to step into the future with more purpose, vision, passion, and energy and hope.”

“Every one of us is now being called to graduate, to step toward something, even though we don’t know what. Every one of us is likewise now being called to temper the parts of ourselves that must fall away, to refine who we are, how we define success and what is genuinely meaningful. And you, the real graduates on this day, you will lead us.”

“It’s vital that you learn, and we all learn, to be at peace with the discomfort of stepping into the unknown. It’s really OK to not have all the answers. The answers will come for sure, if you can accept not knowing long enough to get still and stay still long enough for new thoughts to take root in your more quiet, deeper, truer self. The noise of the world drowns out the sound of you. You have to get still to listen.”

“Can you, the class of 2020, show us not how to put the pieces back together again, but how to create a new and more evolved normal, a world more just, kind, beautiful, tender, luminous, creative, whole? We need you to do this, because the pandemic has illuminated the vast systemic inequities that have defined life for too many for too long. For poor communities without adequate access to health care, inequality is a pre-existing condition. For immigrant communities forced to hide in the shadows, inequality is a pre-existing condition. For incarcerated people, with no ability to social distance, inequality is a pre-existing condition. For every person burdened by bias and bigotry, for every black man and woman living in their American skin, fearful to even go for a jog, inequality is a pre-existing condition.”

“You have the power to stand for, to fight for, and vote for healthier conditions that will create a healthier society. This moment is your invitation to use your education to begin to heal our afflictions by applying the best of what you’ve learned in your head, and felt in your heart. This moment has shown us what Dr. King tried to tell us. Decades ago, he understood that ‘we are caught in an inescapable network of mutuality, tied into a single garment of destiny.’”

“Whatever affects one directly affects all indirectly. If humanity is a global body, every soul is a cell in that body, and we are being challenged like never before to keep the global body healthy by keeping ourselves healthy in mind and body and spirit. As all the traditions affirm, the deepest self-care is at once caring for the human family.”

We “see this so clearly with essential workers. Look who turns out to be essential: teachers — your teachers, health care workers, of course, the people stocking grocery shelves, the cashiers, the truck drivers, food providers, those who are caring for your grandparents, those who clean the places where we work and shop and carry out our daily lives. We are all here because they, at great and profound risk, are still providing their essential service.”

“What will your essential service be? What really matters to you? The fact that you’re alive means you’ve been given a reprieve to think deeply about that question. How will you use what matters in service to yourself, your community and the world?”

Comments

I concur that “the pandemic has illuminated the vast systemic inequities that have defined life for too many for too long.”

It also has illuminated the many antiquated aspects of the American government that need to be eliminated or substantially reformed—the Electoral College, the U.S. Senate in which every state has two senators regardless of population, the Senate’s filibuster rule, the needlessly complex structure for voting that allows some states to suppress voting by minorities or citizens who favor the other political party from those in charge. The more specific need this year is prevent the re-election of Donald Trump and any attempt by him and his allies to subvert the election.

So too there are many aspects of the American economy that need to be substantially reformed, such as the immense differences in compensation of corporate CEO’s and the essential hourly employees. For example, the CEO of Target Corporation had total compensation of $21.6 million for fiscal 2019-20 while “essential” employees in its stores in April 2019 had their hourly wage boosted to $13 with the goal of reaching $15 by the end of 2020 and on March 22, 2020, were advised that they would receive an additional $2 per hour through at least May 2. [2]

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[1] Winfrey, Virtual Commencement Address, Facebook (May 15, 2020); Bogei-Burroughs, Oprah to Class of 2020: ‘What Will Your Essential Service Be?’, N.Y. Times (May 15, 2020).

[2] Kennedy, CEO Pay Watch: Target’s Brian Cornell made $21.6 million last fiscal year, StarTribune (April 23, 2020); Reagan, Target raises its minimum wage to $13 per hour, with goal of reaching $15 by end of 2020, CNBC (April 4, 2019); Wilson, Target gives raises, bonuses to employees during coronavirus pandemic, WTHR 13 (Mar. 24, 2020).

 

 

Open Letter to U.S. Senate from 70 Former Senators

On February 25, the Washington Post published an open letter to the U.S. Senate  from 70 former senators (by my count, 48 Democrats, 18 Republicans and 4 Independents), including three from my State of Minnesota (Dean Barkley (Ind.), Mark Dayton (Dem.) and Dave Durenberger (Rep.)). [1]

The Letter’s Contents

“Congress is not fulfilling its constitutional duties. Much of the responsibility rests on the Senate. We are writing to encourage the creation of a bipartisan caucus of incumbent senators who would be committed to making the Senate function as the Framers of the Constitution intended.”

“As their first priority, the Framers explicitly entrusted all legislative responsibility in Article I of the Constitution: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” To the extent that Congress doesn’t function as the Framers intended, policymaking is left to the less democratic executive and judicial branches.”

“Examples of Congress ceding its powers to the executive through the years include the power to regulate international trade, the power to authorize the use of military force in foreign conflicts and, when the president declares national emergencies, the power of the purse. In addition, the partisan gridlock that is all too routine in recent decades has led the executive branch to effectively “legislate” on its own terms through executive order and administrative regulation. The Senate’s abdication of its legislative and oversight responsibilities erodes the checks and balances of the separate powers that are designed to protect the liberties on which our democracy depends.”

“Anecdotally, we have been told by sitting members that the diminished state of the Senate has left them doubting whether there is any point in continuing to serve, and it has caused potential candidates to question whether the reality of Senate membership is worth the considerable effort and expense of running for office.”

“We do not want to give the impression that we served in some golden age when the Senate operated like clockwork and its members embraced one another as one big happy family. Of course, that was never the case. Senators have always advanced strongly held positions and have vigorously engaged in legislative combat. All of us have vivid memories of tense times with difficult colleagues. But that is just the point. By design, the Senate is the place where Americans with all their competing interests and ideologies are represented and where champions of those positions attempt to advance their causes and work through their differences. Many call the legislative process ‘sausage making.’ That is a fair assessment. Legislating is often messy, but it is America’s way of holding together a diverse nation.”

“Our concern is that the legislative process is no longer working in the Senate. Several factors may be cited: Senate committees have lost responsibility for writing legislation. Rules allowing extended debate, a feature of the Senate that is essential to protecting the rights of minorities, have been abused as the filibuster and cloture have shut down action on the Senate floor. It is now commonly said that it takes 60 votes to pass anything in the Senate. This is new and obstructionist; it takes 60 votes to invoke cloture in the once relatively exceptional event of a filibuster. Filibusters are now threatened as a matter of course, and are too readily acceded to. Neither in committee nor on the floor do rank-and-file members have reasonable opportunities to advance their positions by voting on legislation.”

“We believe a bipartisan caucus of incumbent members that promotes a fair opportunity for senators to participate in meaningful committee work as well as on the Senate floor could help restore the Senate to its essential place in our constitutional system. Its members would need to stand firm in the face of what could be strong opposition from partisans who prefer politicians who take intransigent positions over those who champion a legislative process that celebrates compromise.”

“This does not have to be viewed as a judgment on today’s Senate leadership; instead, it’s a bipartisan act of shared responsibility and accountability for how we arrived at this point. We, who once held the office you now hold and who are confident that service in the U.S. Senate is as high a calling for you as it was for us, will stand up for you against any partisan opposition. We will do so publicly and repeatedly in whatever available forums. And we are convinced that many ordinary Americans will stand up for you as well, as they share our concern for the state of our government.”

“We know that accepting this challenge may put some of you at political risk. But we are also confident that each of you chose to serve in public life to advance the cause of a “more perfect union.” Our hope is that all of you will accept this challenge to advance that timeless and higher purpose. The Senate — and the proper functioning of our republic — are simply too important to be allowed to continue on their present course.”

Comments

Thank you to all 70 of the former senators for taking this public action. As a citizen observer, I agree that “the Congress is not fulfilling its constitutional responsibilities,” that “much of the responsibility rests on the U.S. Senate,” that “Congress has ceded too much power to the executive,” that “committees have lost responsibility for writing legislation” and that there has been “abuse of the [Senate’s] filibuster and cloture rules.”

However, regrettably it seems unlikely to this citizen that during the next eight months of a presidential and senatorial election campaign that there will be the creation of a bipartisan senatorial caucus to reform various Senate procedures.

Moreover, such an effort obviously assumes no changes in the basic constitutional structure of the Senate. For this citizen, a major defect of the current Constitution is the assignment of two senate seats to every state regardless of population and hence the over-representation of land, instead of citizens. That, of course, would require a constitutional amendment. One such amendment would keep two senators for every state under a weighted voting system granting larger votes to the two senators from California, for example. [2]

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[1] 70 former U.S. senators: The Senate is failing to perform its constitutional duties, Wash. Post (Feb. 25, 2020). 

[2] See The Antiquated Constitutional Structure of the U.S. Senate, dwkcommentaries.com.(Oct. 23, 2016). See also these posts to dwkcommentaries.com:  U.S. Senate’s Filibuster Rule Under Attack (May 15, 2012); Former U.S. Senator and Vice President, Walter Mondale, Supports Changing the  Senate Filibuster Rule (.May 15, 2012); District Court Dismisses Lawsuit Challenging Constitutionality of U.S. Senate’s Filibuster Rule (Dec. 22, 2012); U.S. Senate Adopts Modest Reform of Its Filibuster Rule (Jan. 24, 2013);U.S. Needs More Democratization (Feb. 14, 2020); Responses to Ezra Klein’s Democratization Thesis (Feb. 15, 2020). 

Responses to Ezra Klein’s Democratization Thesis

A prior post reviewed the recent Ezra Klein column (and related book) that argued for “reducing the polarization of American politics by democratization, including “proportional representation and campaign finance reform; . . .[making] voter registration automatic and. . . [giving] Washington, D.C., and Puerto Rico the political representation they deserve.” https://dwkcommentaries.com/2020/02/14/u-s-needs-more-democratization/

Two respected political commentators–Norman J. Ornstein, a noted author and resident scholar at the American Enterprise Institute, and Ross Douthat, a self-proclaimed conservative New York Times columnist–have discussed the Klein book, which was the basis for his column.

Norman Ornstein[1]

The Klein book cites research by political scientists showing that split ticket voting in presidential and congressional elections has virtually disappeared, that self-proclaimed independents now vote more predictably for one party over another and that such voters are now more motivated by their antipathy for the other party rather than affinity for their own. Related to all of this is the emergence of political mega-identities: “Republicans have become more cultlike and resistant to compromise or moderation” while “Democrats have an immune system of diversity and democracy.”

Ornstein also endorses Klein’s opinion that “baked into the political system devised by our framers is an increasing bias toward geography and away from people. As the country becomes more diverse, the representation and power in our politics will grow even less reflective of that dynamism. . . . At some point, the fundamental legitimacy of the system will be challenged.”

Therefore, in the book, Klein calls for eliminating the Electoral College and the Senate filibuster, allowing Puerto Rico and the District of Columbia to become states and taking steps to make the House of Representatives more reflective of the country. “Of course, even these measures , commendable though they may be, are a very heavy lift.”

Ross Douthat[2]

Douthat also takes on the more expansive statement of Ezra Klein’s opinions in his book, “Why We’re Polarized.”  [1]

This book, says Douthat, correctly debunks the theory that “the cure for division is just to educate people about the Right Answers to complicated policy disputes.”

Then Douthat counters Klein by relying on two other recent books, Christopher Caldwell’s “Age of Entitlement: America Since the Sixties” and Michael Lind’s “The New Class War: Saving Democracy From the Managerial Elite.” 

According to Douthat, Caldwell, another conservative author and New York Times contributing opinion writer,  sees the current polarization as due to the 1960’s reformers creating “through the Civil Rights Act, a structure of judicial and bureaucratic supervision and redress that gradually expanded into a rival constitutional system. This so-called  ‘Second Constitution’ is organized around the advancement of groups claiming equality, not the protection of citizens enjoying liberties. And so the claims these groups make must be privileged over and against both the normal legislative process and the freedoms of speech and religion and association that the original Constitution protects.”

Lind’s book, says Douthat, sees the current polarization as “the consolidation of economic power by a ‘managerial’ upper class'” and the resulting weakening of “any institution — from churches and families to union shops and local industries — that might grant real power to groups outside the gilded city, the Silicon Valley bubble, the Ivy League gate.” This phenomenon coupled with libertarianism of Regan and Thacher promoted “economic and social permissiveness . . . [and] a new class divide, between thriving meritocratic hubs and a declining and demoralized heartland, . . . [that] explains both the frequency of populist irruptions and their consistent futility.”

The above two books, however, in Douthat’s opinion, fail to acknowledge the importance of the “secularization and institutional-Christian decline” and resulting religious polarization as important trends contributing to polarization. which Douthat will address in a future column.

Note that Douthat does not address Klein’s point about American polarization being connected with the structure of American government giving greater weight to geographical units than to the number of people.

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[1] Ornstein, Why America’s Political Divisions Will Only Get Worse, N.Y. Times Book Review (Feb. 9, 2020).

[2] Douthat, The Many Polarizations of America, N.Y. Times (Jan. 28, 2020).

 

U.S. Needs More Democratization

A New York Times article by Ezra Klein makes a strong argument for the United States needing more democratization in order to depolarize American politics.[1]

He starts this analysis with the assertion that the current polarization of U.S. politics is due to ideological changes: “the Democratic Party has moved left, and the Republican Party has moved right. But more fundamentally, those changes are compositional: Democrats have become more diverse, urban, young and secular, and the Republican Party has turned itself into a vehicle for whiter, older, more Christian and more rural voters.”

As a result, “Democrats can’t win running the kinds of campaigns and deploying the kinds of tactics that succeed for Republicans. . . . [Democrats] can move to the left — and they are — but they can’t abandon the center or, given the geography of American politics, the center-right, and still hold power. Democrats are modestly, but importantly, restrained by diversity and democracy. Republicans are not.”

In addition, the two parties’ voters differ in what sources of information they respect and listen to. Democrats trusted “22 of the 30 sources, including center-right outlets like The Wall Street Journal. Republicans trusted only seven of the 30 sources, with PBS, the BBC and The Wall Street Journal the only mainstream outlets with significant trust.” (The other trusted sources, for Republicans were, big surprise, Fox News, Sean Hannity, Rush Limbaugh and Breitbart.)

Even though Democrats have won the recent total popular vote in elections for the U.S. presidency, the U.S. Senate and the U.S.House of Representatives, the Republicans currently control the presidency, the Senate and a majority of governorships. This is due to the structure of the U.S. government which “counts states and districts rather than people, and the G.O.P.’s more rural coalition has a geographic advantage that offsets its popular disadvantage.”

This Republican advantage, however, may be temporary.  Republicans “represent a shrinking constituency that holds vast political power. That has injected an almost manic urgency into their strategy. Behind the party’s tactical extremism lurks an apocalyptic sense of political stakes.”

Klein, therefore, concludes that “one of the few real hopes for depolarizing American politics is democratization,” including “proportional representation and campaign finance reform; . . .[making] voter registration automatic and. . . [giving] Washington, D.C., and Puerto Rico the political representation they deserve.” This would compel the Republican Party to become a “more moderate and diverse party.” However, “precisely because the Republican Party sees deepening democracy as a threat to its future, it will use the power it holds to block any moves in that direction.”

Without such changes, Klein argues, the U.S. will face “ a legitimacy crisis that could threaten the very foundation of our political system. By 2040, 70 percent of Americans will live in the 15 largest states. That means 70 percent of America will be represented by only 30 senators, while the other 30 percent of America will be represented by 70 senators.”

Conclusion

Klein is right to call for the need for more democratization of the U.S. electoral system.

But while mentioning the U.S. system’s favoring land and districts over people, he does not attack directly those features that do just that: the Electoral College for electing the U.S. president, the allocation of two U.S. senators to each state regardless of population and state legislatures creating the boundaries for seats in the U.S. House of Representatives. Yes, this would require amendments to the U.S. Constitution, which may be next to impossible, but they should be mentioned.

Alex Wegman, a member of the New York Times editorial board, however, points out one facet of the  Electoral College: whether the individuals selected by the political parties are legally obligated to vote for that party’s successful candidate in the popular election when the 536 electors meet about six weeks after the popular election. Indeed, that very issue is now under consideration by the U.S. Supreme Court in two related cases from the federal appellate court in Colorado and a state court in Washington State. In the federal case, the court held that the founders clearly intended for electors to act independently and vote according to their consciences, not to the dictates of any political party. Once a state appoints an elector, the lower court said, its power over that elector ends. They cannot punish someone, or replace him or her, for voting a certain way. This issue, says Wegman, raises the more important question, why do we have to have the Electoral College?[2]

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[1] Klein, Why Democrats Still Have to Appeal to the Center, N. Y. Times (Jan. 26, 2020). Klein is an American journalist, blogger, and political commentator who co-founded Vox, where he is currently editor-at-large. He was previously a blogger and columnist for The Washington Post and an associate editor of The American Prospect. He has served as a contributor to Bloomberg News and MSNBC. (Ezra Klein, Wikipedia.)

[2] Wegman, Why Do We Have an Electoral College, Again?, N.Y. Times (Jan. 26, 2020).

 

 

More Thoughts on Commission on Unalienable Rights

Carol Giacomo, a member of the New York Times Editorial Board and a former diplomatic correspondent for Reuters, has expressed her concern over the State Department’s creation of the Commission on Unalienable Rights,[1] which was discussed in prior posts.[2]

She says the Department’s Human Rights Bureau and Congress were not included in the decision to establish this Commission. Instead it was a personal project of Secretary Pompeo and that next month the Department plans to say more about it. This underscores the concern that this commission is motivated by conservative political and religious beliefs and organizations.

This concern, she claims, also is illustrated by Vice President Pence’s promotion of religious freedom as “our first freedom” and arguing that human rights are becoming politicized and conflated with economic and social goals.

Another is a statement by a conservative religion commentator, R.R. Reno, that he is “increasingly against human rights” which “as the epitome of social responsibility short-circuits collective judgment and stymies action for the sake of the common good.” Reno is the Editor of First Things, a publication of the Institute on Religion and Public Life that “keeps its eyes on first things: our religious faith, love of family and neighbor, the sanctity of life, the achievements of Western civilization, and the dignity of the human person.”

Giacomo also reports that the House of Representatives is considering a proposal to restrict funding for this new entity while several Democratic senators have sent a letter to Secretary Pompeo expressing “deep concern” with the process and intent of this decision.

Harold Hongju Koh, a Yale law professor who was assistant secretary of state for human rights in the Clinton administration, said that a shift to “natural law” would conflict with the view that “modern human rights are based on the dignity inherent in all human beings, not on God-given rights.”

Conclusion

This blogger strives to follow Jesus as a member of a Presbyterian church and believes that religious freedom is a basic human right for all people in the world. But he worries that this Commission and related actions might be surreptitious ways to advance a conservative political and religious agenda and to promote the re-election of Donald Trump. Therefore, this blogger thinks that attention should be paid to this Commission and related activities of this Administration.

For example, for his year’s celebration of the Fourth of July, President Trump reportedly will deliver a speech at the Lincoln Memorial. [3]  Perhaps he will use that occasion to proclaim about unalienable rights.

Not mentioned by Giacomo, but probably related to the new Commission, was last July’s first ever Ministerial to Advance Religious Freedom that was hosted by the State Department and that will be discussed in a future post.

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[1] Giacomo, A New Trump Battleground: Defining Human Rights, N.Y. Times (June 17, 2019.

[2] Is The Trump Administration Attempting To Redefine International Human Rights, dwkcommentaries.com(June 15, 2019); Other Reactions to State Department’s Commission on Unalienable Rights, dwkcommentaries.com (June 17, 2019).

[3] Nirappil, Hermann & Jamison, Officials: Trump to speak at Lincoln Memorial during July Fourth celebration, Wash. Post (June 5,, 2019).

Senator Leahy’s Senate Floor Speech To End Embargo of Cuba

As mentioned in a prior post, on February 7, Senator Amy Klobuchar (Dem., MN) introduced the Freedom To Export to Cuba Act (S.428) with cosponsors Patrick Leahy (Dem., VT) and Michael Enzi (Rep., WY)./

On February 15, Senator Leahy delivered a lengthy and persuasive speech on the Senate floor supporting this bill and ending the embargo. Here is the text of that speech.

After commending Senator Amy Klobuchar (Dem., MN) for introducing this bill and urging other Senators to support the bill,, Senator Leahy said, “This bill is about ending the anachronistic prohibitions in U.S. law that for decades have limited U.S. engagement with Cuba, including preventing American companies from exporting their products to Cuba.  The fact that legislation to do so is even necessary is illustrative of the absurdity of the situation in which we find ourselves.  Companies from Europe, Russia, China, Mexico, and every other country can sell their products to Cuba, which is just 90 miles from our coast, but American manufacturers and retailers are largely shut out of the Cuban market. . . . This bill would enable American companies to compete, which every believer in a free market should support.”

“It is also important for Senators to know that punitive actions by the Trump Administration last year to further restrict the right of Americans to travel to Cuba have had devastating consequences for Cuba’s fledgling private sector – the very people the White House and supporters of the restrictions profess to want to help.  The fact that they have said nothing about the harm they are causing Cuba’s struggling entrepreneurs demonstrates that they care more about continuing their failed policy of sanctions, regardless of who they hurt, than about helping the Cuban people or about protecting the right of Americans to travel freely.” 

“The latest ill-conceived attempt by the White House to punish Cuba would permit Title III of the Helms-Burton Act to go into effect.  This would allow, among others, individuals who were Cuban citizens when their property in Cuba was expropriated half a century ago to sue in U.S. courts any Cuban, foreign, and even American company whose business in Cuba today uses that property.  That could be an airport, port, warehouse, hotel, restaurant, you name it.  Virtually every American and foreign company investing in Cuba would suddenly be liable for treble damages.”

“The purpose, as the law’s authors made clear when it was enacted 23 years ago, is to harm Cuba’s economy by making it completely inhospitable for foreign investment.”

“As my friend in the House, Representative Jim McGovern (Dem., MA), has pointed out –

  • ‘It’s no mystery why Presidents Clinton, Bush, Obama, and Trump blocked Title III from going into effect every six months for the past 23 years.’
  • ‘It is hypocritical – it penalizes companies for doing what American companies do all over the world.’
  • It is contrary to international law, which recognizes the right of expropriation and requires compensation.’
  • ‘It is an extraterritorial sanction that guarantees a response from our trading partners, like Canada, Spain and the EU, including complaints at the World Trade Organization.’
  • ‘And if you care about agriculture, be warned: It will open a new front in the trade war, with all the repercussions that can bring.’
  • ‘It will allow Cuba to claim victim status and rally international support.’
  • ‘It will clog our courts with lawsuits.’
  • ‘It will make it impossible to negotiate compensation for U.S. claims in Cuba, and, in the end, hurt the very Americans who seek compensation for the property they lost.’
  • ‘It will divide us from friends and allies who are now working for a peaceful solution in Venezuela.’
  • ‘And it will guarantee that new investment in Cuba will come from the Russians, Chinese and others who are hostile to the United States, and whose state-owned companies can’t be sued in U.S. courts.’

“I agree with my friend in the other body [Rep. McGovern].  What the White House is considering would trigger an avalanche of unintended consequences that would bring U.S. commerce with Cuba to a halt, harm relations with our allies in this hemisphere and beyond, and make resolving property claims more difficult.  I ask unanimous consent that a piece by William LeoGrande on Title III of the Helms-Burton Act published in the February 13, 2019 issue of OnCubaNews be printed in the Record following my remarks.” [This article will be published in a separate post to this blog.]

Like “many issues, Members of Congress have strong feelings pro and con about U.S. relations with Cuba.  It is no secret that, after more than half a century of a policy of isolation that has achieved none of its objectives and primarily hurt the Cuban people, I, like Senators Klobuchar and Enzi and many others in this body, favor closer relations.”

“Conversely, there are those in Congress and the Trump Administration who believe strongly that we should ratchet up the pressure on the Cuban government in an attempt to achieve those elusive goals.”

“I have often spoken publicly about the lack of political freedom and civil liberties in Cuba.  But I also think it is important to try to be objective:  to criticize when called for and to acknowledge positive changes when they occur.”

“I recognize that those who favor maintaining the failed economic embargo have a longstanding, visceral antagonism and resentment toward the Cuban government.  While they rarely, if ever, mention the corrupt and brutal Batista regime that enjoyed unqualified U.S. support until it was overthrown in 1959, they have legitimate reasons to criticize the mistreatment of the Cuban people by the current government and its support for the corrupt and repressive Maduro regime in Venezuela.”

“But they too should acknowledge that threatening and bullying Cuba has not worked.  In fact it has made the situation worse, and provided an excuse for the Cuban government to blame its own failures on us.  They should also acknowledge positive changes in Cuba, but they never do.  Not ever.  It is almost as if they are psychologically, ideologically, or emotionally incapable of saying one positive thing about the Cuban government, no matter what positive things it does.”   

“Perhaps they are afraid that if they did, they would alienate their donors in the Cuban-American community.  Of course, we know that Cuban-Americans are divided about the U.S. embargo.  Some are hardcore believers in the embargo, and they always will be.  But at least as many – and increasing numbers – oppose the embargo, especially those who were born after the Cuban revolution.” 

“I wonder what the pro-embargo isolationists would say if the Cuban government were to stop harassing and abusing dissidents who favor a more democratic system.  Would those who oppose the embargo say anything positive?” 

“What if the Cuban government decided to embrace a free market economy and let private businesses flourish?  Would those who oppose the embargo say anything positive?”

“I doubt it.  I doubt it because no matter what positive reforms occur in Cuba, they will continue to defend the embargo until Cuba is a full-fledged democracy and those who currently hold power either die or are voted out of office.” 

“We all want Cuba to become a democracy, where civil and political rights are respected, and the sooner the better.  But those same defenders of the embargo support billions of dollars in U.S. aid – and weapons sales – to countries that are led by authoritarian, brutal, and corrupt dictatorships and monarchies, some of which have held power for decades or generations.”    

“How do the pro-embargo diehards reconcile that?  They don’t and they can’t.”

“The fact is, Cuba is changing.  Not nearly as fast as we and the Cuban people would like, but it is changing in ways that few would have predicted not very long ago.”

“Last year, Raul Castro’s hand-picked successor, Miguel Diaz-Canel, became President and he promised a government more accessible and responsive to the people’s needs.  How he delivers on that promise remains to be seen.”   

“Since 2010, after the Cuban government recognized that the Internet is essential if Cuba wants to be part of the modern world, Internet access has exploded.  The government has opened hundreds of public Wi-Fi hot spots and cyber cafes in the past five years, and home Internet access became legal and available in 2017.  Today, almost half of the Cuban people have personal cell phones that were illegal just a decade ago.”

“As others have pointed out, these changes have encouraged new forms of communication, networking and organizing via social media.”

“But change does not come easily in Cuba, as it does not in many countries.  Last July, the government announced onerous new regulations on the private sector, covering a wide range of issues:  food safety, labor contracts, procurement, taxation, limits on the size of private businesses.  The new rules were an attempt by hardliners to crack down on the private sector, which was criticized for black marketeering.”

“But private entrepreneurs resisted, and they challenged the regulations as contradictory to the government’s own plans that recognizes the private sector as important to economic growth and employment. They appealed to government officials and spoke publicly about the harm the new rules would have on their businesses.”

“When the final regulations were issued, several that had caused the most resentment were dropped.  According to the Minister of Labor and Social Security, the decision to revise the rules was due to ‘the opinion and experiences of those directly involved.’”

“The government also retreated on a new law – Decree 349 – requiring artists, musicians and performers to register with the state and pay a large commission on their earnings from private engagements, and it banned work with objectionable content and empowered inspectors to shut down any offensive exhibition or performance.  Clearly, an attempt to further limit free expression.”

“Since the 1980s, Cuban artists have had more freedom to be critical of the government than other social sectors, and so it was not surprising that Decree 349 ignited widespread protests.  After social media was used to mobilize opposition within the Cuban arts community and among artists abroad, the government agreed not to enforce the law until implementing regulations are drafted in consultation with the arts community.”

“According to one observer, ‘during [the latter half of last year], nearly 8.9 million Cubans debated the draft of a new constitution in their workplaces, neighborhoods and schools.  Communist Party members were told not to argue with even the most radical proposals for amendments, and the ensuing debates were freewheeling, often lasting past their scheduled time.  Among the main topics: whether the president and state governors should be directly elected by voters; whether the concentration of wealth and property should be allowed; whether term limits and age limits for leaders were a good idea; and whether the Communist Party should be subordinated to the constitution and hence the law.”  Not long ago it would have been unthinkable to openly debate these issues, especially as part of a constitutional reform process.”

“One article that attracted intense debate recognized same-sex marriage, and was promoted by Raul Castro’s daughter, a long-time activist for LGBTQ rights. The proposal sparked strong opposition from evangelical churches supported by the Catholic Church.  Gay rights advocates countered with campaigns of their own.  The chance of a significant ‘no’ vote on the entire constitutional reform led the government to drop the provision from the final draft of the constitution with a pledge to consider it later.”

“This surge in mobilization by well-organized constituencies utilizing social media to resist government policy, from burdensome private sector regulations to gay marriage, is unprecedented in Cuba.  The government’s willingness to not only tolerate these organized challenges but to change policies in response to them, is significant. “   

“As has been noted, none of these issues dealt with the rigid structure of the Cuban system.  Cuba remains a one party state, in which those who challenge the system are treated as criminals.  But the precedent of organized interest groups mounting successful campaigns to challenge and change government policy is now established, which is positive.” 

“None of the longstanding critics of the Cuban government in the U.S. Congress or the Cuban-American community [has] acknowledged any of this, nor are they likely too.  For them, anything less than a wholesale change of government in Cuba is unworthy of mention, even though they apply a very different standard – a double standard – to other authoritarian governments.  In fact, they would ridicule anyone who regards such changes as positive or worthy of recognition.”

“As we know from our own experience, political reform is difficult.  Our own Electoral College, an anachronism designed to protect a slave-holding minority, remains in effect more than two centuries later.  Five times, in the world’s oldest democracy, it has prevented the winner of the most popular votes from being elected president.”  

“The Cuban people want to live better and they want a lot less government control over their lives.  Armed with cell phones and the Internet they are going to make increasing demands of their government.  This is happening at a time when Venezuela’s economy is collapsing and the survival of the Maduro regime, Cuba’s closest ally in the hemisphere, is in question.  Not surprisingly, the Cuban government is trying to limit the pace of change and to secure other benefactors.  It is turning increasingly to Russia, Algeria, Iran and other countries that welcome the chance to challenge U.S. influence in this hemisphere.” 

“This is a time for the United States to be actively and visibly engaged in Cuba, for Americans to be traveling to Cuba, for expanding educational, cultural, and professional exchanges between the U.S. and Cuba, and for American companies to be competing in Cuba.  It is not a time to return to a failed policy of threats and ultimatums, driven by domestic politics rather than by what is in our national interests.”

“That is why I am cosponsoring the Freedom to Export to Cuba Act.  And it is why I intend to support other bipartisan legislation to replace our failed Cuba policy with one that serves America’s interests, not the interests of a shrinking minority, and not the interests of Russia and other countries that are reaping the economic benefits of our self-defeating policy of isolation.”

Reaction

I concur in the rationale and conclusion of this speech: end the U.S. embargo of Cuba.

While I believe there is valid documentation of the Senator’s assertion that Cuba has limits on free speech and assembly, he views this in isolation from Cuba’s situation. Cuba is a small country facing the vastly larger and more powerful  U.S., which for many years has had various hostile policies and actions against Cuba, including secret and undercover so-called “democracy promotion” programs on the island. In that context, it should be easy to understand why Cuba is concerned about dissidents and free speech and assembly.  Accordingly reliable U.S. assertions about the abolition of so called “democracy promotion” programs on the island should be a precondition to improving Cuban freedoms of speech and assembly.

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Senator Leahy,  Statement of Senator Leahy On the Freedom To Export to Cuba Act (Feb. 15, 2019). 

New Bill To End U.S. Embargo of Cuba

On February 7, U.S.Senator Amy Klobuchar (Dem.,MN) introduced a bill in the Senate to end the U.S. embargo (blockade) of Cuba: S.428: A bill to lift the trade embargo on Cuba.

The bill has two initial cosponsors: Patrick Leahy (Dem., VT) and Michael Enzi (Rep., WY) and was referred to the Senate Committee on Banking, Housing and Urban Affairs.

In a press release Senator Klobuchar said the bill “would eliminate the legal barriers to Americans doing business in Cuba and pave the way for new economic opportunities for American businesses and farmers by boosting U.S. exports and allow Cubans greater access to American goods. The legislation repeals key provisions of previous laws that block Americans from doing business in Cuba, but does not repeal portions of law that address human rights or property claims against the Cuban government.”

Senator Klobuchar added, “Instead of looking to the future, U.S.-Cuba policy has been defined for far too long by conflicts of the past. Cuba is an island of 11 million people, just 90 miles from our border—lifting the trade embargo will open the door to a huge export market, create jobs here at home, and support both the American and Cuban economies. Our bipartisan legislation will finally turn the page on the failed policy of isolation and build on the progress we have made to open up engagement with Cuba by ending the embargo once and for all.”

Cosponsor Senator Enzi stated,“History has shown that the embargo with Cuba has not been very effective. This bipartisan legislation would benefit the people in America and in Cuba. It would provide new opportunities for American businesses, farmers and ranchers. We need to open dialogue and the exchange of ideas and commerce that would help move Cuba forward. It is time to work toward positive change.” 

The other cosponsor, Senator Leahy commented, “Decades after the end of the Cold War we continue to impose punitive sanctions against Cuba, a tiny island neighbor that poses no threat to us. After more than half a century, the embargo has achieved none of its objectives.  President Obama took a courageous and pragmatic step in opening diplomatic relations with Cuba, but President Trump has reinstated the failed isolationist policy of the past.  It is up to Congress to end the embargo, which is used by the Cuban government to justify its repressive policies, and by foreign companies to avoid competing with U.S. businesses that are shut out of the Cuban market.  Lifting the embargo will put more food on the plates of the Cuban people, allow them to access quality U.S. products, and encourage reforms in Cuba’s economy, all while benefiting American companies.  I commend Senator Klobuchar for her steadfast leadership on this issue.”

Cuba relies on agriculture imports to feed the 11 million people who live on Cuba and the 3.5 million tourists who visit each year. This represents a $2 billion opportunity for American farmers annually. The Freedom to Export to Cuba Act repeals the current legal restrictions against doing business with Cuba, including the original 1961 authorization for establishing the trade embargo; subsequent laws that required enforcement of the embargo; and other restrictive statutes that prohibit transactions between U.S.-owned or controlled firms and Cuba, and limitations on direct shipping between U.S. and Cuban ports.

The legislation has been endorsed by Engage Cuba, the Washington Office on Latin America, the Latin America Working Group, and Cargill.

This blogger over the last eight years repeatedly has called for ending the embargo and presses the Senate and House to pass this or a similar bill and for the President to sign same.

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Klobuchar Press Release: Klobuchar-Enzi-Leahy Introduce Major Legislation To Lift Cuba Trade Embargo (Feb. 8, 2019); Enzi Press Release: Bipartisan coalition in Senate introduce legislation to lift Cuba trade embargo (Feb. 8, 2019); Leahy Press Release: Klobuchar, Enzi, Leahy Introduce Major Legislation to Lift Cuba trade embargo (Feb. 8, 2019).