Coronavirus, Domestic Policy

Wasting America’s Moment

At the beginning of the coronavirus pandemic, I called it “America’s moment” and urged a military-style response.  The American people’s acceptance of the initial lockdown and social distancing measures showed a community spirit that many thought lacking in today’s society. In the end, we met the moment in a uniquely American way – through technological innovation resulting in effective vaccines that would allow us to resume a normal life. Now the resistance to those vaccines risks wasting this moment because of a combination of political pique and selfish independence.

Anti-vaxxers like to seize on the inherent uncertainties of the “fog of war” to quibble with statistics while ignoring the obvious.  It is a fact that COVID cases and hospitalizations are rising significantly among the unvaccinated population for the first time in months due to the new Delta variant.  If you’re above 30 years of age, you have a significantly higher risk of hospitalization or death if unvaccinated.  Moreover, while breakthrough infections are possible, the evidence suggests that persons vaccinated with the Pfizer or Moderna vaccines are less likely not only to acquire the original disease and its variants, but are also less likely to transmit it to others.

Unfortunately, former President Trump and some governors are catering to the anti-vaxxers by opposing or even banning mask and vaccination mandates by local governments and private businesses trying to protect their citizens and continue the return to normal.  A better response would be to encourage vaccinations by enacting a federal worker’s compensation system that would protect workers who have a fear (however much it’s been hyped) of a reaction to the vaccine.  Such a system would also insulate businesses from potential legal liability so they can continue to operate normally.  

Vaccination refuseniks espouse a warped sense of American independence to justify a response that endangers their fellow Americans. They seek to assert their “independence” by exposing themselves and their fellow Americans to painful and expensive hospitalization and even death.  They also jeopardize the normalization of everyday life they claim to crave. As TR said above, a free people must exercise their freedom responsibly.  I challenge all of the unvaccinated to look into Roosevelt’s eyes and tell him why they should be allowed to so endanger their fellow Americans and the American example to the world.   

Domestic Policy, Government, Immigration, Uncategorized

A Blow for Immigration and Governmental Reform

This country will not be a permanently good place for any of us to live in unless we make it reasonably good place for all of us to live in.

Theodore Roosevelt

A federal district court in Houston has struck down the Obama Administration’s Deferred Action for Childhood Arrivals (DACA) program and its companion for parents of those children. Specifically, it held that the program was an administrative rule making required to follow the notice and comment process of the federal Administrative Procedures Act (APA).  The failure of the Obama Administration to follow this process rendered the program illegal. CNN helpfully included a copy of the Order and Opinion of the court here. The decision is not only a step towards effective immigration reform, but also strikes a blow against the power of the administrative state. 

The court essentially took up the issues ignored in the US Supreme Court’s Regents of the University of California opinion that I previously discussed here.  This decision struck down the attempted rescission of the DACA program by the Trump Administration as itself violating the APA while glossing over the illegalities in the original rulemaking. This new federal court opinion turns the tables and focuses on those infirmities, noting that the Supreme Court itself held that DACA was not simply a passive non-enforcement policy. Instead, it conferred affirmative immigration relief such as the right to receive a work permit and the right to travel abroad without permission.  It did so despite admitting in the original memorandum that only the Congress could confer affirmative immigration relief. The district court’s opinion built on Justice Clarence Thomas’s dissent in the Regents opinion by highlighting the real reason for the program – the inability of successive Presidents to unite the Congress and country around an immigration bill that included effective limits and enforcement as well as the necessary relief for longtime residents. 

The district court was mindful of the hardships an immediate cessation of the program would cause to current participants and simply prohibited further expansion of the program for the time being. The Biden Administration has announced that it will appeal the order and urged Congress to pass a bill fixing the problem. The administration’s latter position is correct. Both political parties need to look beyond the twin corruptions of identity politics and corporate contributions to pass a comprehensive immigration reform legalizing the status of the “Dreamers” and creating real enforceable limits on future immigration as I advocated in this post. A truly comprehensive answer to the immigration crisis would be a new beginning for insuring the American Dream for both lifetime citizens and immigrants alike. 

Political Reform, Politics

For the People or the Elite? -The Trojan Horse of Internet Contributions

Optimism is a good characteristic, but if carried to an excess, it becomes foolishness.

Theodore Roosevelt

Several years ago, my computer was hacked at the Denver International Airport. Shortly afterwards, I started receiving emails addressed to “Ricot Claude” (not anywhere near my name or nickname) from Democratic party campaigns and affiliated groups hounding me for contributions.  Many of them came through a super-PAC called ActBlue.   The experience exposed a major problem in campaign finance regulation that could be a source of the same kind of “dark money” targeted elsewhere in the For the People Act.

The fundamental flaw of the current system is that it brands the contributors, not politicians, as the culprits who need regulation. At the same time, the Federal Election Commission has almost no resources to chase down and enforce violations by errant contributors.  Campaigns and PACs need only use their “best efforts” to determine whether a contribution is legal, which is defined as only requesting the basic identifying information required by disclosure reporting. See 11 CFR 104.7.  The committee can rely solely on the representations by the contributor and no independent verification of the source of the contribution is required. The only exception is the presidential campaign matching fund program. See 11 CFR 9034.2. Candidates may only receive matching federal funds for contributions evidenced by a “written instrument”.  This is specifically defined as a check, a credit card accompanied by a signed transaction slip or, in the case of an Internet contribution, an electronic record transmitted by the cardholder with a copy of the credit card number and the name of the cardholder. Thus, the candidate automatically has sufficient independent information to verify the identity of the contributor.

In 1995, the FEC ruled in Advisory Opinion 1995-9 that contributions via the Internet were subject to the lax reporting standards applicable to most committees and did not need to be independently verified (see the answer to Question No. 4).  This may explain why so few presidential candidates use matching funds anymore and rely so heavily on Internet contributions instead. This opinion also authorized the use of outside financial contractors to solicit and manage the contribution process.  Since then, a cottage industry of third party vendors unregulated by the FEC has arisen to solicit, raise and manage contributions on behalf of political committees (see this example of Paypal’s service). Only these vendors have the information about the credit card or other source of a contribution.  They have no obligation to cross-reference the name on the credit card or Paypal account or other source against the name reported to the committee or report any discrepancies to the committee.  

Thus, I could have used the system to make illegal contributions under the name “Ricot” with very little likelihood of consequences.  A corporation or foreign national could have done the same.  The potential for abuse was documented in a forensic audit of ActBlue’s contributions by former Kansas Attorney General Phil Kline, who reported that fully 48% of ActBlue’s contributions came from the unemployed while its Republican counterpart WinRed had only 4%.  It also showed how gift cards can be used to game the system. 

This loophole needs to be plugged before it becomes a floodgate of foreign and other dark money into political campaigns.  One way would be to impose on all political committees the documentation and verification rules required under the presidential matching funds program.  In the alternative, the FEC should have the power to regulate outside vendors that manage contributions for committees and impose the same kind of verification rules applicable to the private sector.  A model for such a program can be found in the Federal Trade Commission’s Identity Theft Prevention Rules, which require certain creditors to check transactions against red flags of identity theft.  In the absence of congressional legislation, the FEC should require political committees to use such mechanisms to verify the source of the contribution or require their vendors to have such a system and actively audit the vendor to insure it is enforcing the program.

Internet contributions have been hailed as the average American’s answer to the influence of corporate contributions and dark money.  As Theodore Roosevelt said, we should not let that optimism cause us to repeat the mistakes of the Trojans in the Iliad and unwittingly unleash the same kind of abuses we want to prevent.  The For the People Act or any similar campaign finance reform should be amended to control against this threat.  Otherwise, we may find that the plugging of one dark money loophole will simply cause it to spring up in a more corrosive and damaging form.