NFL Blame-Shifting on Brain Injuries – posted 8/6/2017 and published in the Concord Monitor on 8/10/2017

August 6, 2017 Leave a comment

Players have reported to NFL training camps, exhibition games are underway, and we are already back to football. Along with the players reporting, we also get new updates on the grim toll of brain injuries. The two are now inextricably linked.

The big news for this season is the major new study of football’s effects on the brain. A team of researchers led by neuropathologist Anne McKee examined the brains of former NFL players and found that almost all – 110 out of 111- showed signs of chronic traumatic encephalopathy or CTE.

As Daniel Engber, a writer for Slate has pointed out, that statistic can be misleading. The brains in Dr. McKee’s study were not randomly selected. They were donated by family members who suspected that researchers might find evidence of damage.

Still, even if the numbers are not as spectacularly high as show up in the new study, it is hard not to see them as significant.

CTE has cognitive symptoms like memory loss, violent mood swings and attention deficit; behavioral symptoms like depression and suicidality; and inflated rates of Alzheimer’s and dementia.

In a recent series, the Associated Press put a human face on many previously undisclosed CTE stories. The AP reporters talked to family members of many former players who were diagnosed with CTE after they died. One story I would mention is Ollie Matson’s. Matson was an Olympic medal winning sprinter in the 1952 Helsinki games, a College and Pro Football Hall of Fame player, and a very great running back for the Cardinals, Rams and Eagles. He played pro ball from 1952 to1966.

Matson’s story is remarkable. He played college football for the University of San Francisco. In 1951, Matson’s team went undefeated but they were not allowed to play in any bowl game because Matson and another teammate were black. In that era, the Orange, Sugar, and Gator Bowl committees would not invite any teams that had black players. Matson was the prototype big back before that was common. He was a great receiver, punt and kickoff returner, and open field runner. When Matson retired from the pros, he was second only to Jim Brown in all-purpose yards.

In the AP story, Matson’s son said his father barely spoke in the last four years of his life. He only said “hi” and “bye”. He could not tell a $10 bill from a $100. The dementia symptoms worsened in the years before he died. Matson needed a wheelchair and a nurse for the final five years of his life. The family did not know what to make of his symptoms. Matson’s son now says he now feels robbed of his father’s last years. No one knew about CTE then.

Unfortunately, science still does not have a way to test the prevalence of CTE among living players. That would tremendously improve the science but we do now know for a certainty that there is a neurodegenerative brain disease that is found in individuals who have been exposed to repeated head traumas. The disease is pathologically marked by an increase in abnormal tau protein in the brain. We now know that some significant percentage of players are adversely affected.

With that knowledge, we need to look at how the NFL has responded to the increased awareness of CTE. While the League has taken some steps, especially a concussion protocol, what they have done is grossly inadequate.

Not nearly enough has been done to protect the players. The concussion protocol is a good idea but in practice it has been less than effective. Too often players who are clearly wobbly on their feet end up staying in games.

I think Sally Jenkins, a sports writer for the Washington Post, has most clearly explained the complex reasons this happens. Jenkins explains that the NFL’s compensation structure forces players to play hurt or get cut.

Most NFL players are not superstars with eye-popping contracts. Many are relative unknowns fighting to have a career. The average NFL career across all positions is about two and a half years. Players need playing time to have a chance to succeed. Concussions can get in the way of the opportunity to play. That is a strong disincentive against reporting any injury.

Jenkins argues that the NFL shifts responsibility for head injuries onto the players and away from management. If a player commits a vicious helmet-to-helmet hit, he will get a heavy fine and even a suspension. Think Kam Chancellor of the Seahawks who got a $23,152 fine for spearing. When the medical and coaching staff ignore the concussion protocol, the NFL typically looks the other way.

Jenkins uses the example of Case Keenum, a backup quarterback for the Rams. In a very close 2015 game, with one minute left, the Ravens sacked Keenum and his head bounced violently off the turf. Keenum immediately clutched his head. He could not get up for a while after the play and was down on all fours.

The protocol required Keenum to be removed from the game and to be examined by an independent concussion expert. That did not happen. A Rams trainer briefly talked to a wobbly Keenum. The Rams coach, Jeff Fisher, said Keenum “felt he was okay” and he also said “it was a critical point in the game”. Keenum never was pulled from the game. After the game, doctors diagnosed Keenum with a concussion. The NFL had a conference call about what happened but decided to do nothing. No coach or medical staff got fined or punished for leaving Keenum in the game.

This type of scenario, which is not uncommon, is an occupational health and safety issue which requires further regulation. The League will fine players for spearing and for roughing the passer but it has not fined coaches, trainers, and team doctors for flagrant violations of the concussion protocol. Nor has it penalized owners for countenancing health and safety violations.

Maybe if management took a serious financial hit, more attention would be paid to the correct implementation of the concussion protocol. Now it seems like only the players get fined.

Jenkins calls it “blame-shifting”. The League skates through its own liability by placing all consequences on the players.

There is a need for harder-edged rules that mandate a protocol where players are automatically pulled off the field and examined by an independent concussion expert. The doctors who make the call about a player returning to the game must not be connected to any team or the NFL power structure. The desire to win at all costs is corrupting.

In the realm of occupational health and safety, I think of NFL players as equivalent to coal miners. People may say players or miners assume the risk of their jobs but both occupations are inherently dangerous. Where the players face CTE and orthopedic injury, the miners face black lung, not to mention the danger of mine accidents and cave-ins.

Since the late 19th century, the federal government has regulated coal mining. As fatalities in mines increased (between 1900-1910, coal mining fatalities exceeded 2,000 annually) federal coal mine health and safety law became more comprehensive and stringent. Not surprisingly, with the tougher laws, mining fatalities dramatically dropped.

Football owners have the same kind of control over their business that mine owners have had over the their industry. A big difference is that the NFL owners patrol themselves without much interference. Indifference to player health and safety is a by-product of this brand of laissez-faire capitalism.

I would suggest that NFL owners are modern-day equivalents to 19th century robber barons. According to Forbes Magazine, the NFL’s ten richest owners are worth a combined $61 billion. I probably do not need to say that is an astounding figure. With those kind of resources, it is wrong to assume that far more could not be done to make the game safer. Safer equipment, more protective rules, consequences for coaches, trainers and owners, and better medical research into harms to players could change the game in a very positive way.

I remain doubtful the League will adequately police itself. After all, a few years ago the League denied the very existence of CTE. Now it pushes sole responsibility on the players. Over the history of the NFL, you have to wonder how many thousands of former players suffered from CTE who we will never know about. That is a legacy of suffering that goes far beyond the concussion lawsuit.

No one can deny football is exciting and supremely athletic. But, the human cost remains needlessly high. It does not have to be that way.

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The Dilemma of the Undocumented Domestic Violence Survivor – posted 7/23/2017 and published in the Concord Monitor on 7/30/2017

July 23, 2017 Leave a comment

Since Donald Trump became president, one focus of his administration has been a crackdown on undocumented immigrants. As has been widely reported, the crackdown goes much farther than deporting violent criminals, gang members and drug dealers.

Any undocumented immigrant, regardless of circumstance, can get deported.

This shotgun approach has provoked widespread fear of deportation in immigrant communities in the United States. In that community, no group has been more adversely affected than domestic violence survivors.

Like other undocumented people, domestic violence survivors are afraid to come forward and draw any attention to themselves. They legitimately fear they will be deported if they show up on any radar screen so they decide to live with the abuse. Considering the actions of the U.S. Immigration and Customs Enforcement (ICE) this year, the fear is understandable.

In February, there was a domestic violence case in El Paso, Texas, that drew national attention. A woman known by the initials IEG sought a protective order alleging she was a victim of domestic violence. IEG had filed three police reports in the preceding year alleging that she had been punched, kicked and chased with a knife. The Family Court granted IEG a protective order based on the domestic violence.

On the way out of the courtroom, six federal immigration agents arrested IEG for her immigration violations. The El Paso County Attorney, Jo Anne Bernal, whose office represents domestic abuse victims when they seek court orders against their abusers, said:

“We suspect it’s the (alleged) abuser who tipped off ICE about the woman.”

Bernal said that IEG’s offense appeared to be re-entering the country illegally after being deported.

Judge Yahara Lisa Gutierrez, who oversees the court that issued IEG’s protective order, stated that ICE agents should avoid effectively assisting domestic abusers by acting on their tips against their partners. It creates a collaboration relationship between the government and the abuser.

Because the story was widely reported, it had a seismic impact in immigrant communities across the country. It drove victims further into hiding. Now many victims are even afraid to call 911.

IEG’s case is not isolated. In Denver earlier this year, four domestic violence victims did not go forward on their cases because the victims refused to cooperate with law enforcement. A video had surfaced showing ICE agents poised to make arrests at a Denver courthouse. The victims were afraid of drawing the attention of ICE and then subjecting themselves to deportation.

Cases like IEG’s can fan the flames of fear so that victims and potential witnesses are more reticent to talk to the police or cooperate in criminal cases. Even under the best circumstances, domestic violence victims are often afraid to seek restraining orders because the perpetrators of their abuse threaten retaliation. Add the fear of deportation into the mix and you have a recipe for continuation of domestic violence.

It is quite common for abusers to use a victim’s undocumented status to control her. The abuser typically threatens to tell ICE and turn the undocumented partner in if she tries to escape the relationship.

The abuse can take many forms besides threatening to report her to the authorities to get her deported. The abuser will tell the victim no one can help her and that as an undocumented person, she is a nobody in America. He will isolate her from friends and family. He will not allow her to learn English. He will threaten to report her if she works under the table. He will destroy her important papers. He will call her a prostitute and a mail order bride. Belittling and emotional abuse are universal abuser tactics designed to wear down and immobilize the victim.

It is no wonder many women feel trapped. Lack of financial resources and language barriers play a role. The fear of having children taken away in the context of deportation also acts as a major disincentive from escape.

Unfortunately, there is more than anecdotal evidence that the Trump crackdown is moving domestic violence victims further into the shadows. In May, a coalition of national organizations focused on domestic violence and sexual assault surveyed 700 advocates and attorneys from 46 states and the District of Columbia about the issues confronting immigrant survivors seeking services.

78% of respondents said that survivors expressed concerns about contacting police due to fears it would open them up to deportation. 75% said that survivors had expressed concern about going to court for a matter related to their abuser. 43% of respondents said that the survivors they have worked with have dropped criminal or civil cases related to their abuse because they are fearful of potentially opening themselves up to deportation.

In light of the immigration crackdown, there is likely confusion about what protections remain in place for domestic violence victims. Under the Violence Against Women Act, immigrant victims of domestic violence, sexual assault and stalking can qualify for special protection. They can possibly get immigration protection through a U visa, which is reserved for victims of abuse. To obtain a U visa, a law enforcement official must certify that the U visa applicant has been helpful to an investigation or prosecution of criminal activity. I would be surprised if the immigration crackdown has not had a chilling effect on the number of victims willing to seek a U visa.

One disturbing thing that happened in May: the U.S. Department of Homeland Security’s new Victim Information and Notification Exchange – an online database created to track when criminals are released from or into ICE custody – publicly listed the names and detainment location of victims of domestic violence, sexual assault and human trafficking who have applied to stay legally in the United States on special protective visas. The Department of Homeland Security is legally prohibited from releasing identifying information about immigrants seeking these visas.

It took a couple months for this error to be corrected so that protected names were removed from the database. While the error was almost certainly inadvertent, it could not have reassured victims.

While I know there are many who may not care what happens to undocumented domestic violence victims, I believe that view is short-sighted. Federal law has long recognized our communities are more secure if crime victims can come forward. Survivors of domestic violence should not face dire consequences for contacting law enforcement.

It is dangerous to create a strata of subterranean crime victims who are without any legal protection.

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The Destruction of Medicaid – posted 7/9/2017 and published in the Concord Monitor on 7/16/2017

July 9, 2017 1 comment

Since the Republican Senate health care bill was released, there has been much discussion about its worst aspects. Is it the cutting 22 million people off health insurance? Is it doing away with pre-existing condition protections? Or is it the attack on essential benefits so health plans would no longer include key content like mental health or substance abuse treatment? I think it is none of these.

The worst aspect is what the Republican bill does to the Medicaid program.

Medicaid currently provides care to 74 million people, including the most vulnerable among us. The Republican Senate bill strips the entitlement from Medicaid. That alone would be devastating to low-income people, women, children, seniors, and people with disabilities.

What does that mean to strip the entitlement? It means that there will be no guarantee of Medicaid services for the needy and vulnerable in New Hampshire and across America.

At present, Medicaid benefits cannot be taken away without due process of law. Individual Medicaid recipients have statutory and regulatory rights and a property interest under the Constitution.

As a result, Medicaid recipients also have strong notice and appeal rights. These protections have been built up over the last half century. There is an extensive body of case law delineating these rights. Medicaid recipients can appeal any unfair or improper denial of service through an administrative process, including fair hearings. If needed, Medicaid applicants and recipients, pursuant to their rights, can appeal to federal and state court as well.

The Republican health care plan in either the House or Senate version does away with these rights and demolishes a 52 year body of law. Instead of an open-ended assurance for states, Medicaid would become a discretionary program. Whether the Republican plan is based on block grants or per capita caps, both of which would cap the federal funding for Medicaid, access would depend on money not running out.

These changes would be a huge deal to all individuals on Medicaid as well as those applying for the program. You would go from being a claimant with a well-defined set of rights to being a beggar and a pawn in rich peoples’ political games. Since these changes are buried in the complexity, claimants will not know until it is too late that their rights have been eviscerated.

This is an example of the deconstruction of the administrative state Steve Bannon has talked about. It is also Paul Ryan’s Ayn Rand dream come true.

In contrast to current Medicaid which was designed to be a countercyclical program able to respond to downturns in the economy and state-level emergencies, the Republican plan would set a base year spending level. Then an index would be used to set yearly growth rates. These capped spending levels would cover a falling share of actual costs over time. If and when money ran out, and it would, the consequence would be cuts. States would have to decide whether to terminate eligibility categories (such as pregnant women, children, seniors or people with disabilities) or eliminate coverage for vital services (like prescription drugs, mental health, inpatient medical services or cancer treatment).

Block grants and per capital caps set a fixed allotment for each state. They leave states at high risk for enrollment increases and for numerous other cost drivers such as medical innovations, new health conditions, disease outbreaks, and the health impacts of any natural disaster.

Credible experts at the nonpartisan Congressional Budget Office estimate the Republican Senate bill would cut Medicaid by $772 billion and reduce enrollment by 15 million people over 10 years. You have to ask: what happens to those people?

The Republican Senate bill also would end the Medicaid expansion which has allowed 31 states and the District of Columbia to provide coverage to 11 million low income adults. Because of the Medicaid expansion, we are at an all-time low in the number of uninsured people in the United States.

The Medicaid expansion has been a tremendous bargain for the states that have adopted it. While some complain that states pay any share of the cost, the Medicaid expansion limits state matching dollars to only 10% of the total cost. The federal government picks up 90% of the cost. By any fair evaluation, that is a great deal for the states. Typically in Medicaid, the federal government match is 57%.

Overall, Medicaid is now the largest source of health insurance coverage for individuals with substance abuse disorders, including opioid addiction. Since mid-2014, 23,000 people in New Hampshire have received substance abuse services from Medicaid. Given the magnitude of the substance abuse epidemic, it makes zero sense to end such an effective source of treatment.

I do not believe the far-reaching consequences of the Republican Senate bill have been sufficiently grasped. The bill goes much farther than repealing Obamacare by cutting and restructuring the Medicaid program as a whole. It undermines what has been an essential component of the safety net.

To comprehend the harm, more needs to be said about the value of the current Medicaid program. It is not well-understood.

New Yorker writer Atul Gawande had this to say about Medicaid:

“It is immensely popular and works well. It provides coverage for sixty per cent of disabled children, and maternity coverage for half of pregnant women. Two-thirds of nursing-home residents end up relying on Medicaid coverage after their savings are spent. Among adult Medicaid recipients, sixty per cent work, and eighty per cent are part of working families.”

Medicaid is really the only insurance affordable for low-income people. It has been a successful joint federal/state partnership. Still, states have much flexibility in how they design their Medicaid program. There are both mandatory and optional services. States already decide what optional services they desire.

Medicaid services have to be sufficient in amount, duration, and scope to reasonably achieve the rehabilitation and treatment purposes of the statute. Also, services have to be state-wide so that care is geographically available.

Medicaid has been designed to serve underserved and vulnerable populations. Much thought over many years has gone into the evolution and improvement of Medicaid which has a lengthy history of popular and bipartisan support. President Ronald Reagan, a hero to conservatives, increased Medicaid coverage for lower-income and vulnerable Americans three different times. It is hardly conservative to take a meat cleaver to this intricate structure.

The Republican Senate bill uses the savings from Medicaid and from cutting marketplace subsidies to pay for $563 billion in tax cuts primarily for the wealthy, insurers, and drug companies. It is no surprise the Senate has had no public hearings and did the bill-writing entirely behind closed doors.

The history of block grants is that their structure enables deeper cuts over time. I see no reason why that would not be true with Medicaid.

We are at a truly fateful time for health care in the United States. President Trump campaigned on a specific promise not to cut Medicaid. The Republican Senate bill must be defeated.

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Do Not Leave Confederate Monuments Undisturbed – posted 7/5/2017

July 5, 2017 Leave a comment

I am no fan of Confederate monuments. I have followed the national debate about what should happen to these monuments. Count me as one of those pleased when New Orleans recently decided to take down four Confederate monuments, including three large statues of Jefferson Davis, Robert E. Lee, and P.G.T. Beauregard. New Orleans once had been America’s largest slave market so statue removal was a small act of poetic justice.

Considering all the arguments of both sides, I do not believe that Confederate monuments should remain undisturbed. While it is up to each locality how to address their monument, if the statue is not taken down, there at least needs to be a new plaque or marker putting the Confederate statue in the context of slavery and white supremacy. Considering the awful history of racism, that should be minimally required.

Also, nothing prevents any state, city, or town from putting up monuments to recognize the Black freedom struggle. In 2014, Charleston, South Carolina installed a new statue of Denmark Vesey, the leader of a failed slave rebellion in 1822. Erecting new anti-racist monuments is an effective way to balance the historical narrative. Taking down statues is not the only way to go.

Call me a damn Yankee but I cannot see honoring a sickness. I suppose you could also call the Confederacy a monstrous crime against humanity. People like Robert E. Lee and Jefferson Davis were architects of a system based on slavery.

To me, Confederate monuments are the equivalent of South Africa maintaining monuments to honor apartheid after that miserable social system was mercifully dismantled and dispatched. You do not see any monuments there to the good old days of Hendrik Verwoerd, B. J. Vorster, P.W. Botha, and F.W. deKlerk.

I have heard the arguments about how the Confederate monuments are about Southern heritage, states’ rights, and regional pride. Some have said taking down these monuments denies history. I am not buying.

I think we need some perspective on the scope of the issue. According to USA Today, there are at least 700 Confederate monuments nationally in 31 states. Many of the monuments are prominently located in public parks, courthouse squares and in state capitals.

The monuments are not located in the deep South alone. USA Today says many are in border states that fought with the Union. The number of these monuments has actually been increasing. USA Today says 35 have been added since 2000.

It needs to be asked: how can the number of these monuments be increasing?

The answer is that there are still people ideologically fighting the Civil War. There are varieties of Southern apologists including right wing neo-Confederates who are not reconciled to the Civil War verdict on the Confederacy. They are aggressively trying to influence public debate and turn back the clock.

Part of the problem is that even at this late date, people do not understand the horror show that was the Confederacy nor do they grasp our racial history since the Civil War. While it is admittedly overambitious to tackle such a wide swath of history, I will take a stab at an overview.

The Southern states that seceded from the Union did so to preserve, maintain, and expand the cause of white supremacy. It is ironic that so many neo-Confederates now claim the South seceded over states’ rights.

When the Southern states left the Union, they did it because they were in favor of slavery and against states’ rights. Many of the Southern states were upset that northern states had passed laws that conflicted with the federal government’s efforts to enforce the Fugitive Slave Act. That federal law required that all escaped slaves be returned to their masters, even if they lived in the north. Abolitionists openly defied the law and some northern states passed “personal liberty” laws that barred local officials from cooperating in the capture and return of fugitive slaves. Some other states no longer let slave owners transit across their territory with slaves.

The South could not abide the actions of states that ran contrary to their slave trade business. Both the Underground Railroad and the expanding abolitionist movement also made that business more difficult.

It is quite revealing to read the seceding state declarations at the time they split from the Union. I think the Texas Declaration is quite representative. In its “Declaration of the Causes Which Impel the State of Texas to Secede From the Federal Union”, Texas said:

“We hold as undeniable truths that the governments of the various States, and of the Confederacy itself, were established exclusively by the white race, for themselves and their posterity; that the African race had no agency in their establishment; that they were rightfully held and regarded as an inferior and dependent race, and in that condition only could their existence in this country be rendered beneficial or tolerable.”

Defenders of Confederate monuments seem lost in a fantasy of an idealized South where happy slaves willingly submitted while Confederate soldiers fought bravely and selflessly for their Lost Cause way of life. The defenders leave out so much. Behind the fantasy and undergirding it was Jim Crow, the Klan, and lynching. The harm of slavery and its aftermath is almost unfathomable. The lost lives, the murders, the squashed aspirations, the relentless racism and discrimination, the denial of a political voice, the unequal educational access, the lack of access to health care, the enforced servitude, the humiliation and subordination: the list is long.

I expect that some Southern apologists will see the argument I am making as some kind of leftist political correctness. I find that laughable. Where leftists or progressives go overboard and deny free speech on some college campuses, they should get criticized. However, this is a very different matter. Understanding our history of slavery and white supremacy is a matter of intellectual integrity and honesty. It has nothing to do with being p.c.

The deeper problem in America remains our minimizing the crimes and history of white supremacy. That is a continuing legacy affecting the whole country, not just the South, and there has been insufficient accountability for that. We still do not want to look at it.

Honestly, there was never a time to justify Confederate monuments. It is way past time to move on from that.

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White Working Class Blues – posted 6/18/2017 and published in the Concord Monitor on 6/26/2017

June 18, 2017 Leave a comment

Social science research does not often make news. One exception was the study by two Princeton University researchers, Anna Case and Angus Deaton, which showed that middle-aged white Americans were dying younger. In their study, they showed that suicide, alcoholism, and drug overdoses are an increasing problem for middle-aged white people, aged 45-54.

The trend is uniquely American and it is country-wide. There is not a similar process going on in other advanced industrial countries. It flies against a history of public health improvement.

The rise in mortality is being largely driven by those with a high school degree or less.

Case and Deaton do not attribute the trend to any single factor. They write,

“The deaths of despair come from a long-standing process of cumulative disadvantage for those with less than a college degree. The story is rooted in the labor market, but involves many aspects of life, including health in childhood, marriage, childrearing and religion.”

The researchers concluded that the overall life prospects for white middle-aged people without a BA have declined over time. They state that stagnation in wages and in income have bred a sense of hopelessness.

The story shows a parallel rise in self-reported midlife morbidity. There was a significant decline in the fraction reporting excellent or very good health and a corresponding increase in the fraction reporting fair or poor health. The increase in poor health was matched by increased reports of pain, serious psychological distress, difficulties with activities of daily living and alcohol use.

So what are we to make of this? I see the trend as connected to the loss of the American Dream. The myth was that if you work hard and play by the rules, you can get ahead. While there always are exceptions, that has not turned out to be true for a huge number.

The trend Case and Deaton describe needs to be situated inside our economy of economic inequality where the top 10%, and especially the 1%, reap all the economic gain. Overall, white working class people have not fared well. The prospects for landing secure, good-paying jobs with benefits have lessened over time. Low-paying, no-benefit jobs are more the norm.

The suicides, the increased alcoholism, the opiate overdoses, like what we have seen in New Hampshire, are all about the hopelessness and grim future prospects.

It does nothing to diminish the fight against racism to acknowledge new trends. So often the dilemma of white working people gets counterposed against Blacks or immigrants. I think it is valid to separate how the white working class has fared. By white working class, I mean those who work for wages whether they are blue collar or white collar. I am not talking about the professional managerial class.

I do not see either political party as speaking to the needs of the white working class. There is a lack of empathy and a cultural distance. It pains me to acknowledge that the Republicans have done a better job appealing to the white working class than Democrats have. Republicans have talked about jobs and they have pursued the white working class vote aggressively. Trump talked about forgotten Americans and it is hard to argue with that. They have been forgotten.

The irony is that prior to the election, the closest Trump ever came to working class people were caddies at his golf courses or possibly food servers at Mar-a-Lago and his other resorts. Trump’s track record with the working class is a history of stiffing contractors and blue collar trades people. He has a history of being a businessman who repeatedly failed to pay his workers and then doggedly fought paying in court.

We are at a watershed moment now for Democrats. Democrats need to step back and reevaluate their program and their message. All the losses should force a reexamination. It is like when your football team keeps losing. At some point, you need to fire the coach. The Democrats keep rehiring the coaches who lose and they fail to recognize the importance of new blood.

They lost the Super Bowl. Are they going to keep doing the same thing?

In the last election, Hillary Clinton could not articulate a persuasive rationale for why her election would improve the lives of working people. More than the Russians or Comey, that was her downfall. Saying she was more qualified than Trump did not cut it with voters. Neither did attacks on Trump’s character, no matter how justified.

Part of what the Democrats need to look at is how they have failed to reach white working class voters across all the states. They should not be losing so badly in rural and small town America. The Clinton campaign was far too ready to write these voters off even though many of them inhabited key battleground states. Her failure to even campaign in places like Wisconsin was inexcusable.

I fault the Party – not just the Clinton campaign. The problem is hardly new. The infamous “basket of deplorables” comment by Clinton did not come out of nowhere. It followed Obama’s 2008 comment about bitter people who cling to their guns or religion. The elitism and condescension have a history in the party.

Attacking Trump is a grossly insufficient strategy.

It may seem obvious but the Democrats need to seek the white working class vote. A good start would be tackling economic inequality. They need to be far bolder in projecting a vision of pro-worker change. Milquetoast ideas of reform are not what is needed now. On the economy, Bernie Sanders was far closer to the program the Democrats should push.

A remedy for much of the despair is a meaningful plan to rebuild America with a 21st century green economy. The Democrats need to credibly argue for a full employment economy, single payer national health insurance and much more affordable housing. Only that kind of powerful plan will break through the cynicism and get the millions who never vote to the polls.

As Democrats work out a new program, they need to keep in mind that two-thirds of Americans do not have college degrees. They need to speak to this group, not just those with a BA degree.

The Democratic Party needs a rebirth. Whether that happens, we shall see.

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Trump Versus The Rule of Law – posted 6/3/2017 and published in the Concord Monitor on 6/7/2017

June 3, 2017 Leave a comment

Possibly the most worrisome aspect of the Trump presidency has been disrespect for the rule of law. Since I know there are many who will disagree with this view, let me be specific.

In the first travel ban case, the government lawyer representing the President argued that Trump’s executive order was “unreviewable”. In a government founded on separation of powers, the argument is remarkable. Trump is arguing the power of a president is absolute and cannot be challenged.

In response, the Ninth Circuit Court of Appeals ruled that the President’s argument was “contrary to the fundamental structure of our constitutional democracy”.

When Judge James L. Robart, a George W. Bush appointee to the Federal Court in Washington state, initially enjoined the travel ban, Trump called him a “so-called judge” whose decision was “ridiculous”. Trump tweeted “if something happens, blame him”.

No judge is beyond criticism but name-calling and ad hominem attack by the President on a federal court judge is debased. It is an assault on the judge’s legitimacy and on separation of powers. Trump’s tweets are a sad substitute for a reasoned argument.

When Judge William Orrick blocked the plan to strip federal funding from sanctuary cities, Trump blamed the Ninth Circuit Court of Appeals, not realizing Judge Orrick was a Federal District Court judge. Trump then suggested that the Ninth Circuit needs to be broken up because he does not like its rulings.

The reaction is juvenile. Courts deal with a myriad of issues and it is guaranteed that there will be rulings to make everyone unhappy. I see Trump’s attack on the Ninth Circuit as an attack on an independent judiciary. He wants courts who will only rule his way.

During the campaign, Trump criticized Judge Gonzalo Curiel for his rulings in the Trump University fraud case. Trump complained Curiel was “Mexican” and “was giving unfair rulings”. Judge Curiel is a U.S. citizen born in Indiana. Trump said that he favored building a wall on the U.S.-Mexico border and Curiel could not be fair in the Trump University case because of his Mexican heritage.

Criticizing a judge for being “Mexican” is transparently racist. Even worse, it reflects a poor understanding of the need for a modern judiciary to be diverse so that it is representative of the public served. There is a legacy of racism the law must overcome and Trump appears to be unaware of that.

In the second travel ban case, Trump’s lawyer argued that the Court should ignore all the things he said during the campaign and only consider if the travel ban mentioned Islam. At issue was whether the travel ban violated the Establishment Clause of the First Amendment.

Trump had previously said on the Christian Broadcasting Network that his travel ban was designed to favor Christian refugees over Muslim refugees. He also famously called for a ban on all Muslims entering the United States. Ignoring these statements is like whitewashing reality and courts cannot simply ignore context.

Trump has expressed dissatisfaction with the First Amendment. Recently, in an interview with ABC’s Jonathan Karl, Reince Priebus, White House Chief of Staff, said that the administration was considering an effort to amend the First Amendment. Trump has long wanted to increase the liability of journalists.

Calling reporters “enemies of the American people” and calling news outlets “evil” does not reflect an understanding of the First Amendment which expressly guarantees freedom of the press. I think physical assaults on reporters like the attack on the Guardian’s Ben Jacobs occur, in part, because of Trump’s demonizing journalists. Constant berating can unhinge human behavior and lower the bar.

In an interview on Fox News to discuss his first 100 days as president, Trump denounced the constitutional system of checks and balances as “archaic”, saying “it’s a really bad thing for the country”.

Certainly, as I noted, judges are not beyond criticism but the way criticisms are offered and the substance of the criticism matter. Trump appears to want to be an all-powerful autocrat like Putin or Erdogan. Leaders like that do not have to contend with checks and balances.

I found it telling when Trump gave President Duterte of the Philippines a shout-out for the war on drugs Duterte has conducted. Trump said,

“I just wanted to congratulate you because I am hearing of the unbelievable job on the drug problem.”

During Duterte’s presidency, according to Human Rights Watch, more than 7000 Filipinos have been disappeared by government death squads. They have carried out vigilante killings with no due process for the victims. It is appalling for an American president to green light extra judicial murders in any country.

The fact that our judiciary has not rolled over and has performed its constitutional duties admirably is maybe the most encouraging aspect of the response to Trump’s authoritarian tendencies. At the same time, lawyers and law students stepped up, volunteering and setting up legal clinics at airports to assist airline passengers. At least part of the Bar has been galvanized.

Where countries have headed down an authoritarian road, one reason has been the failure of lawyers and the judiciary to oppose the creeping authoritarianism. Lawyers and judges may both be subject to opportunism and careerism. The perception of personal advancement and desire for business profit can lead to cowardly choices. Rocking the boat, in the face of advancing authoritarianism, has a history of being both professionally and personally dangerous.

I do want to make clear that I do not see Trump”s disrespect for the law as a total outlier among American presidents. Over the last 50 years, since at least Vietnam, Executive Branch overreach has been a continuing theme that implicates both political parties. From Watergate to torture, rendition and black sites to drone assassinations and kill lists, there is a degree of continuity. Trump has upped the ante though.

Historical experience shows the necessity for the rule of law and an independent judiciary, regardless of the political party in power. It remains to be seen how far down the authoritarian road Trump will go.

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What Direction Forward for the Democrats? – posted 5/21/2017 and published in the Concord Monitor on 5/27/2017

May 21, 2017 1 comment

With so much focus on the Trump presidency and its daily spectacle, it is easy to overlook the dilemma of the Democrats. The Democrats are having an identity crisis. It is not clear where the Democratic Party is heading and what kind of Democratic Party will emerge.

I do not think the question of what kind of Democratic Party we need gets asked enough. Maybe some Democrats just want to be a big tent that is not Republican with no further self-definition.

While according to a new Gallup poll, Trump has a 38% favorability rating which is one of the lowest a president has ever had, especially early in a presidency, Democrats’ poll numbers are equally bad. The Democratic Party has a 40% favorability rating. The Democrats’ favorability rating has dropped 5% since the November election.

More people now identify as independents than as Republicans or Democrats.

The opinion that the Democrats are out of touch is widespread. In a different poll authorized by the Washington Post, only 28% of those polled felt the Democrats were in touch with the concerns of most people in the United States today. Among Democrats themselves, 44% felt the Party was out of touch.

Certainly the accuracy of any poll can be disputed but by any objective standard, the Democrats are weak. All the losses speak for themselves. The Democrats have been losing badly for some time now, especially in rural America.

To think it is enough to be simply anti-Trump would be a big mistake. There are many possible ways to oppose but opposition to Trump alone guarantees nothing about the Democrats’ future prospects.

Looking at statements made since the election by Democratic Party leaders, I find the Party lacking in genuine self-reflection. I would begin with the previous standard-bearer, Hillary Clinton. In her public statements and apparently in her upcoming book, Secretary Clinton faults Russian meddling in the election, former FBI Director Comey’s actions, Wikileaks’ theft of emails from her campaign chair, John Podesta, and misogyny as the reasons for her loss.

So far nothing has been articulated about the role of the DNC and the failure of the Democrats to highlight a resonant message for how the election of Democrats would change the lives of ordinary Americans.

Sadly, and I speak as a progressive Democrat, I do not think the Democratic Party establishment gets it. They do not grasp what went wrong in 2016. Right now I would say there is a good chance that in spite of widespread revulsion to Trump, the Democrats could blow it again.

At the outset, let me say that this is not about Hillary versus Bernie. That is water under the bridge. There are no doubt hard feelings on both sides but that is the past and the Party needs to move on.

So what is the Party not getting? I think it is a matter of vision and self-definition. The Party does not clearly stand for anything. Even with its silos of position papers, it lacks a bold vision. No one can really say what the Democratic Party would want America to look like in 2050.

Although it has a history of being the political party allegedly representing the little guy, in 2016 it gave up on being a party of change. Instead, Democrats were widely viewed as the status quo party.

Democrats allowed Trump and the Republicans to define themselves as a party of change. Stealing the mantle of change was shrewd campaign strategy and the Democrats never grasped the harm.

The absurdity of the Republicans as a change political party cannot be emphasized enough. The Republicans have always represented the interests of the 1%, the most conservative billionaires. No amount of public relations will ever change that.

In an era defined by economic inequality, the Democrats have failed to recognize the economic desperation of masses of working people, including those in rural America. This desperation has been right under their noses but, with some notable exceptions, they have missed it. Clinton’s failure to even campaign in Wisconsin maybe be the best single example of this cluelessness.

It should probably not need to be said but for the last 40 years, the American working class was hammered by our own corporate class who closed up shop and sent jobs to cheap labor in the Third World. That was all about maximizing profit at the expense of American workers. So many of the previously good-paying union jobs disappeared and when jobs have been replaced too often they are low-paying Mcjobs. Economic mobility has declined, especially for those lacking a college degree.

Instead of representing the interests of working people, the Democrats have too often acted as representatives of the prosperous professional class or of liberal billionaires. The Democrats failed to show working people both that they understood the misfortune inflicted or that they cared about it.

I see the last election as a smackdown on the Democrats for their elitism. Even though Trump is a phony populist who will not deliver for working people, many were willing to roll the dice and bet on him because at least he promised change. He talked a good game about forgotten Americans even though he is a con man of the first rank.

So what would a pro-worker agenda look like? It is not just a laundry list of issues like $15 an hour minimum wage, paid family and medical leave, Medicare-for-all health insurance, expanded union and worker rights and free college tuition at public colleges and universities. It is more of an outlook of caring and concern for hardworking Americans wherever they are. Whether you are white, black, Latino, or Asian, it does not matter. Democrats need to leave behind the division between red states and blue states. The Party needs to care about working people issues in all 50 states.

There is a need for the equivalent of a Marshall Plan for our own hollowed out economy that rebuilds infrastructure and cares about the many places in America that have been neglected. This needs to be done with an ecological awareness too.

While the FDR coalition is a long time ago, Democrats could learn from that historical experience. There was a reason working people loyally supported FDR for years. He did much to support them. Hope will replace economic fatalism when Democrats have a vision, outlook and agenda that genuinely speaks to the needs of the masses of Americans.

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