Friday, June 10, 2016

2016 Early Election Projection—Hilary Wins

Election Projection ( ) says the 2016 election looks a lot like 2012 with the possibility of Hilary pulling off a minor landslide.  EP says if the election were held today Hilary would win with 334 electoral votes to 204 for Trump.  She would do slightly better than Obama who won with 332 EVs in 2012.  EP says Hilary could pick up AZ which went Republican in 2012.  She also has a shot at GA, MS, NC, SC and even TX, normally solid Republican which are Weak Trump at this point.  If she picked up those states, she would win with 416 EVs.  We haven’t seen that margin of victory since the Bush/Dukakis race in 1988.  Stay tuned. 

Friday, May 27, 2016

A Two Martini Scenario

Here is a real two-martini scenario for you--or pick your own drink.

This year 34 Senate seats are up for grabs—24 Republican and 10 Democrats.  Of the 24 Republican seats 5 are in states that Obama carried in 2012 by 5 points or more and 2 are in states he carried by 3 points or more.  Larry Sabato of the Center for Politics is currently projecting that the Democrats will retain (Safe or Likely) 9 of its 10 seats up  this year (only Nevada is questionable-rated Toss-Up).  On the other hand, Republicans can count on retaining (Safe or Likely) only 15 seats.  That leaves a total of 10 Senate seats in play (Leans or Toss Up). Republicans currently hold 9 of those 10 seats in play.  They are:

WI and IL—Currently Republican, Leaning Democrat.
AZ, MO, and NC—Currently Republican, Leaning Republican
FL, NH, OH, PA—Currently Republican, Toss Up
NV—Currently Democrat, Toss Up

This is where it gets really interesting.  If Democrats can retain control of the White House—Hilary wins—then they only need a net gain of 4 seats to take control of the Senate.  If they lose Nevada—their only toss-up—Democrats have to win just 5 of the remaining seats in play.  Two (WI and IL) have already been leaning Democrat.  That means they need to win 3 more out of the 4 Republican seats that are Toss Ups to control the Senate.

Those four states are FL, NH, OH and PA.  So, what are their chances

Florida: Sen. Marco Rubio isn’t running for re-election (although he has been encouraged to jump back into the race.  See: Democratic Representative Patrick Murphy has the backing of establishment Democrats including Obama and Biden.  He has also raised a significant amount of money.  On the Republican side, two moderates may split the vote, this allowing Rep. Ron DeSantis, a Tea Party favorite, to win the nomination.  Democrats have a slight edge, at least for now.  They have a better chance if the Tea Party guy gets the nomination.

New Hampshire:  Republican incumbent Kelly Ayotte is popular, but New Hampshire has been trending bluer.  Governor Maggie Hassan is also popular and mounting a strong challenge, but faces a possible scandal involving donations from a former teacher at a school where Hassan’s husband is the Principal.  The teacher was dismissed for sexual misconduct with students.  The Republicans are trying to pin “cover up” on Hassan but that probably won’t stick.  Right now, Ayotte has a slight edge, but within the margin of error.  Hassan has a good shot at taking the seat.

Ohio: Republican incumbent Rob Portman is a strong candidate, but the Democratic challenger, former Governor Ted Strickland is popular and holds a slight lead at present.  Ohio has gone for the winning Presidential candidate in every election since 1960 and has split the Senate vote (voting for one party for President and different party for the Senate) only twice in that time.  If Hilary wins Ohio (which she probably needs to do to win) then there is a good chance Democrats will pick up the Ohio Senate seat.

Pennsylvania: Incumbent Republican Pat Toomey currently has a 10 point lead over Katie McGinty, who has no experience in elective office and poor name recognition.  That could change.  Toomey could be in danger if women turn out in big numbers to support a first time woman President and a first time female Senator.  Plus, McGinty has strong ties to Clinton, is an environmentalist, and has the support of key Democratic power brokers in PA.  Democrats will spend a lot of money on this race, if nothing else to turn out women voters.

Bottom Line:  If Hilary beats Trump, Democrats have a good chance of picking up the three or four seats they need to regain control of the Senate.

The Two Martini Scenario

Now here is the two-martini scenario I promised you.

Hilary wins.  The Democrats pick up three or four of the Senate seats we just discussed AND



Damn.  I’m buying a bottle of Bombay Sapphire.  Hell, forget that, I’m buying two.

Read more at these sites:

Wednesday, May 25, 2016


The Inspector General of the U.S. Department of State issued a report today on Clinton’s private email use.  Here is the conclusion of the extensive investigation by the Inspector General.

Longstanding, systemic weaknesses related to electronic records and communications have existed within the Office of the Secretary that go well beyond the tenure of any one Secretary of State. OIG recognizes that technology and Department policy have evolved considerably since Secretary Albright’s tenure began in 1997. Nevertheless, the Department generally and the Office of the Secretary in particular have been slow to recognize and to manage effectively the legal requirements and cybersecurity risks associated with electronic data communications, particularly as those risks pertain to its most senior leadership. OIG expects that its recommendations will move the Department steps closer to meaningfully addressing these risks.


Number of times Clinton is personally mentioned in the Report’s conclusion:  0
Number of times Clinton is cited for behaving differently from any other Secretary’s of State: 0
Number of times Clinton is blamed for using personal email: 0
Number of times Clinton is held responsible for State Department employee email abuse: 0
Number of times Clinton is accused of an illegal act:  0
Number of times Clinton is cited for bad judgment: 0

Significance of Report with regard to Clinton’s qualifications to be President:  0

Chances that Republicans will find Clinton guilty of 100s or 1,000s of illegal acts and efforts to give aid and comfort to the enemies of the U.S.: 101%.

Impact Clinton's email use will have on her selection as the nominee of the Democratic Party for President: 0%

Impact this report will have on the 2016 election: 0%

Enough said.

Wednesday, May 18, 2016

Bernie is Becoming a Bitter, Pathetic Old Man

Kevin Drum at Mother Jones has it right. See his article here:

Bernie Sanders has turned into nothing more than a bitter old man.  He has lost his bid for the nomination,  He knows it.  But, he can't accept it.  And, his lack of grace in losing could cost the Democratic Party the White House and give us a President Trump.  Are we surprised?  Maybe we shouldn't be.  Bernie Sanders is NOT a Democrat, never has been.  It is a sad end to a political career that we once could respect.

Thursday, May 12, 2016

First Projections of 2016 Presidential Election are in and they favor Hilary

This may make you feel a little better about the future of America.  First projections for the 2016 presidential election for reliable sources have Hilary Clinton winning, and perhaps winning big, against Donald Trump.

Election Projection has Clinton with 337 Electoral Votes to 201 for Trump.  EP projects Clinton will win 53..6% of the popular vote to 45.4% for Trump.

Larry Sabato has Clinton winning 347 Electoral Votes to 191 for Trump.

Great start.  However, we have months to go before we can sleep without having nightmares of a Trump presidency. 

Sunday, February 7, 2016

A Little Something to Take Your Mind Off Politics

In the book, Three Men in a Boat (published in 1889), humorist Jerome K. Jerome tells the story of a trip he took up the river Thames with his friends George and Harris and a fox terrier named Montmorency.  

All dog lovers will love (and recognize) Montmorency.  

Here is Jerome’s description of life with a dog as he and his friends tried to pack for their river trip.  Enjoy.

Montmorency’s ambition in life, is to get in the way and be sworn at. If he can squirm in anywhere where he particularly is not wanted, and be a perfect nuisance, and make people mad, and have things thrown at his head, then he feels his day has not been wasted. To get somebody to stumble over him, and curse him steadily for an hour, is his highest aim and object; and, when he has succeeded in accomplishing this, his conceit becomes quite unbearable. 

He came and sat down on things, just when they were wanted to be packed; and he laboured under the fixed belief that, whenever Harris or George reached out their hand for anything, it was his cold, damp nose that they wanted. 

He put his leg into the jam, and he worried the teaspoons, and he pretended that the lemons were rats, and got into the hamper and killed three of them before Harris could land him with the frying-pan. Harris said I encouraged him. I didn’t encourage him. A dog like that don’t want any encouragement. It’s the natural, original sin that is born in him that makes him do things like that.

Jerome, Jerome K. (2014-03-28). Three Men in a Boat (To Say Nothing of the Dog): illustrated, with a detailed map and notes (Kindle Locations 550-558).  . Kindle Edition.

Monday, January 25, 2016

Republicans say a woman can have an abortion as long as she thinks she is NOT pregnant.

That’s right folks.  You may have missed this, but in 2013, Republicans in North Dakota passed a law making it illegal for a woman to have an abortion if she thought that she was pregnant.  In other words, in North Dakota it was okay to have an abortion but only if you didn't think you needed one. I'm not making this up.  What can I say—Republican logic.  And they say they aren't anti-women.

The Supreme Court just rejected the Republican logic.

Check it out.

Tuesday, December 22, 2015

Could Hilary actually be Trumped?

Everyone has said for some time that Donald Trump is a joke.  In poll after poll, he under performs other Republicans against Hilary Clinton.  Hilary beats Trump by more than 6 points on average and by as much as 11 points in a Fox News poll.  She is statistically tied with the other Republicans.  Looks like Trump would be a dream opponent. See the averages here: 

Additionally, half of Americans, including 20% of Republicans and 47% of Independents say they would actually be embarrassed to have Donald Trump as President.  We aren’t talking about just being unhappy.  No, 50% of Americans say they would be “embarrassed” to have Trump in the White House.

So, we shouldn’t worry.  Trump is a loser.  If he is the Republican nominee, Clinton wins and maybe wins big.  Right?

Not so fast.  A new study may just tell a different story.  Trump may have a lot more support, at least among Republicans and perhaps among Americans in general, than the polls show.
Morning Consult published a study involving 2,500 Republican respondents on December 21.  The study compared the difference between support for Trump for registered Republicans interviewed online, by live telephone, and by interactive voice response.  The study found that “Trump performs about six percentage points better online than via live telephone interviewing and that his advantage online is driven by adults with higher levels of education.  Importantly, the differences between online and live telephone persist even when examining only highly engaged voters.”  See:

Bottom Line: Republicans are more likely to support Donald Trump if they can express their support in private—like in a voting booth.  If that holds true for Democrats and Independents, then there may be a lot of “closet” Trump supporters out there.  Think this couldn’t be true.  Jonathan Capehart of the Washington Post reminds us…

[P]eople are more inclined not to tell the truth to a pollster if they believe it will make them look bad. This has become known as the Bradley Effect. Tom Bradley was the African American mayor of Los Angeles who ran for governor of California in 1982. He was leading in the polls right up to Election Day, but lost narrowly once actual ballots were counted. Then, folks didn’t want to be viewed as racist. Now, folks appear to not want to be viewed as supporting a racist.

Watch out.  Trump just might be no joke.

Monday, December 21, 2015

Guess what the Republican Congress has done now

You may have heard that the Republican-led Congress has finally passed a budget bill to avoid a government shutdown.  The bill is 2000 pages long and was enacted in the middle of the night.  It passed, but only after numerous pet pieces of legislation of various Republican legislators that would never have passed on their own were added when no one was  looking.  

Huffington Post Josh Silver and Mansur Gidgar took a look deep inside the new budget bill and found some pretty horrible stuff like the following:

  • 501(c)4s are tax exempt organizations that don’t have to disclose their donors.  They are supposed to be non-profit and “operated primarily to promote social welfare” like, for example, the NAACP and AARP.  Such organizations can fund political advertisements as long as politics is not their principal activity.  The IRS is supposed to be the watchdog to make sure that unscrupulous political operatives don’t set up sham 501(c)4s organizations so foreign governments, large corporations or billionaires buying influence don’t have to disclose their political activities.  No longer.  Hidden in the Republican budget is a provision that bars the IRS from asking questions.  The 501(c)4s watchdog has been muzzled.
  • CEOs of large corporations got a gift buried on page 1,982 of the bill.  Now they don’t have to worry about being required to disclose their corporation’s political spending, even to their stockholders.  The Securities and Exchange Commission has been barred from requiring such disclosure. 
  • Numerous privacy groups along with major tech companies like Apple, Google, Twitter and Wikipedia have opposed something called the Cybersecurity Information Sharing Act (CISA) which encourages companies to share the data they collect on their customers’ activities with government agencies.  The Republican-controlled Congress has not been successful in getting CISA passed in the open so they just buried the entire bill in the budget act.  So much for privacy or open government.
Read the Silver/Gidgar post here:

Two Really, Really DUMP provisions inserted in the budget act

Finally, Huffington Post’s Zack Carter discovered that while they were stuffing the budget bill in the middle of the night with provisions that they could never pass in the light of day, the Republican Congress managed to add two of the dumbest pieces of legislation ever passed:
  1. A provision denying funding to a nonexistent organization.  Section 522 makes it illegal to provide funds to ACORN, an organization that has not existed for more than five years.
  2. A provision forbidding the  U.S. Government from distributing pornography.  In  four different places in the budget bill, the Republican Congress inserted the following provision:

    “None of the funds made available in this Act may be used to maintain or establish a computer network unless such network blocks the viewing, downloading, and exchanging of pornography.”
    That’s going to upset a lot of lonely soldiers and sailors.  Fortunately guys and gals, most legal scholars say such a provision is totally meaningless and unenforceable. 


Hilary vs Trump vs the Republican nominee
2016 is going to be a blast!

Monday, December 14, 2015

Will 2016 lead to a Trumped-Up Mess?

Could we be facing a “trumped-up” mess as a result of the 2016 election?  Consider what might happen if Donald Trump abandoned the Republican Party and ran as an independent.

We could end up with a Republican President and a Democratic Vice President, neither of whom had won a majority of the popular vote or mandate to govern.

How could that happen?  Here’s how.

Sometime in the Spring of next year Donald Trump decides that he hasn’t been treated right by the Republican Party establishment, perhaps accusing them of rigging the primaries/caucuses to favor Rubio or Cruz or Christie or anyone but Trump.  Trump announces he is forming a third party with himself as the nominee and is successful in getting himself on the ballot in enough states to theoretically capture 270 electoral votes and win.  The latter is difficult and expensive, but possible given Trump’s name recognition and available cash.  See ballot access requirements here:  See more on how Trump could get on the ballot in many, if not all of the states, here:

Let’s say the Republicans nominate Rubio.  Clinton, as expected, is the Democratic Party nominee.  So, we have a three-way race: Clinton, Trump, and Rubio.

In such a three-way race, we would expect Trump and Rubio to split the Republican vote, thereby making it impossible for either to obtain the 270 electoral votes needed to win. 

Clinton should have a clear path to victory.  Democrats start with states with 247 electoral votes either firm or leaning Democrat.  Clinton needs only 23 additional electoral votes to reach 270 and win.  She could get there by just taking Florida or losing Florida, but taking Virginia and Ohio or either Virginia or Ohio and most of the other toss-up states.  See for a map showing which states are safe or lean Democrat, safe or lean Republican and are likely toss-ups in 2016.

However, what if Clinton failed to carry some of the key swing states?  For example, Rubio took Florida and Trump took Virginia, Ohio and Iowa (another likely swing state).  Rubio and Trump split the remaining safe or leaning Republican states.

We could end up with an electoral vote somewhat like this:

Clinton: 266
Trump: 140
Rubio: 132

None of the candidates for President would receive the 270 electoral votes required to win.
So, what happens? How do we choose the President?

The 12th Amendment to the Constitution states that if no candidate for President or Vice President receives a majority of the electoral votes, then the House of Representatives chooses the President from the three candidates with the most electoral votes by majority vote with each state delegation having one vote.  The Senate chooses the Vice President from the two candidates with the highest electoral votes by majority vote.  Each Senator gets one vote.

So, here is what would happen:

The election for President will be held on November 8, 2016.
On December 19th (the first Monday after the  2nd Wednesday in December) the electors chosen in each state will meet and officially cast their electoral votes.
On January 6th, the President of the Senate (current Vice President—Joe Biden) counts the electoral votes and announces the official results: Clinton 266, Trump 140, Rubio 132).

Since no candidate has won a majority (270) of the electoral votes, the House will elect the President and the Senate will elect the Vice-President.

Here is where it gets interesting
Republicans currently have a majority in both the House and Senate.  They are expected to lose some seats but to continue to control the House after the 2016 elections.  See a projection of the U.S. House race here:

The Senate is a different story.  It is possible that the Democrats will take back control of the Senate after the 2016 election, particularly in Clinton does well.  Let’s assume they do.  See a projection of the Senate race here:  See a rundown of the 10 Senate seats likely to change hands here:

The new Congress will be sworn in on January 3rd.  The President will be selected by members of the NEW Republican House and the Vice President will be selected by members of the NEW Democratic Senate.

In a normal year, Rubio would get all of the Republican votes in the House and be elected President, even though he came in third in the electoral vote count (and most likely a distant third in the popular vote).  But the Republican caucus in the House could split.  Some House members might vote for Trump instead of Rubio, particularly if Trump carried their districts.  The selection of a President could drag on for weeks or even months.

While the House Republicans are trying to pick a President, the Democratic-controlled Senate will be almost certainly picking Clinton’s running mate as the Vice President.

The Constitution provides that the NEW President and Vice President will be sworn in on January 20th.  If the Republican House has still not selected a President, the NEW Vice President- a Democrat- would be sworn into office and immediately become Acting President until a new President is selected by the House.

Let’s say that the establishment Republicans in the House eventually prevail and Rubio is selected as President.
  • We would have a Republican President and Democratic Vice President who would be constantly at war over policy and the direction of the country.
  • The candidate who came in THIRD in BOTH the popular and electoral vote count would be our President with NO popular mandate to govern. 

What a Trumped-Up Mess.

Monday, December 7, 2015

Happy Holidays

Honour the Christmas holidays in your heart, and try to keep the spirit of this special time of year with you all the year.  Live in the Past, Present and Future.  Let the spirit of each strive within you.  Embrace the lessons they teach so that by doing so you much sponge away the bad writing on your life stone.  Keep the spirit of Christmas well each day and let your heart laugh.

Best wishes.

OK.  I've been channeling Dickens lately.

Friday, June 19, 2015

Americans Say, Let the Gun Violence Continue

According to the Gun Violence Archive, over 11,000 Americans have been killed or seriously injured by Gun violence so far this year, including 309 children under the age of 11 and over 1,000 teenagers. Over 130 of the gun incidents have involved mass shootings like the recent incident in Charleston.  That’s just so far this year.  And, the year isn’t half over.

If foreign terrorists were killing Americans at this rate, there would be an outcry for Congress and the President to do something to stop the gun violence or at least slow it down.  But, foreigners aren’t killing and injuring Americans.  We are doing it to ourselves and we don’t seem to even care. 

The sad fact is that most Americans are very happy to allow gun violence to continue.  Support for stricter gun control is at an all time low according to data compiled by  See the chart below

If that fact doesn't bother you, you are part of the problem.

Wednesday, April 1, 2015

The Real Reason the Indiana Religious Freedom Law Must Not Stand

The Atlantic has a good article explaining why Indiana’s so called “Religious Freedom Restoriation” law is different from and much more dangerous than Federal and other states’ similar acts.  As Garrett Epps points out in that article, there are two huge problems with the Indiana law that make it very different from similar laws passed by Congress and other states.  These differences make the Indiana law a major threat to the rights of not just the LBGT community but to all Americans.

First, the Indiana law greatly expands the definition of “a person whose religious exercise has been burdened” by any governmental law or regulation to include not just individuals, but “(2) An organization, a religious society, a church, a body of communicants, or a group organized and operated primarily for religious purposes. (3) A partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association, or another entity that: (A) may sue and be sued; and (B) exercises practices that are compelled or limited by a system of religious belief held by: (i) an individual; or (ii) the individuals; who have control and substantial ownership of the entity, regardless of whether the entity is organized and operated for profit or nonprofit purposes.  In other words, corporations are “people too.”  So are just about all organizations and entities that provide products or services whether for profit or not.  All of these entities, not just individuals, can claim a religious exemption from the applicable law or regulation.  So, Mr. or Ms. Corporation, go ahead and ban gays, blacks, Hispanics, or whomever you wish on religious grounds because YOU Mr or Ms Company are a person too.

Second, the Indiana law protects this broadly defined “person’s” religious exercise from being burdened even when no government agency is involved in the judicial or administrative proceeding related to the enforcement of the law or regulation.   Section 9 of the Indiana law reads:  A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.  You can use the religious excuse under just about any circumstance to avoid having to abide by anti-discrimination laws.

Okay, so what is wrong in treating companies the same way we treat individuals?  Just this.  Real People—John Smith, Jane Doe, etc.—are not products of the state.  They don’t come into existence because some government agency creates them.  Companies do.  If you want to incorporate a business, you have to obtain the approval of the state by paying a fee and showing that you and your fellow owners of the business meet certain legal requirements.  In return for seeking and obtaining state approval and recognition, you and your partners in the business obtain enormous benefits:  favorable tax treatment and the ability to deduct business expenses, enhanced credibility with customers, brand name protection, and, most importantly, protection of your personal assets and those of your fellow investors.  Your personal liability for the debts and obligations of your company is limited in the case of a lawsuit or claim against your business.  The State (actually the people through their government) grants you and your co-owners of your business these protections and benefits  In return, your company must abide by the laws and regulations of the state and federal government in regard to your business operations including laws forbidding your company from discriminating against customers and potential customers, even when the discrimination is dictated by some perverted religious belief.

Bottom Line:  If you—John Doe or Jane Smith--do not want to associate with certain individuals or groups of individuals, for whatever reason, including reasons dictated by your religious beliefs, that are wrong headed, mean spirited, immoral, unethical and/or just plain dumb, that’s your privilege.  Go ahead.  You will probably miss getting to know a lot of great people but that’s your choice.  Go live in your sanctimonious Hell.  However, when you hang out your business shingle to offer your products and/or services to the general public for a fee and, in particular when you seek the recognition and benefits of incorporation, you no longer have the right to be treated like just another person, at least with regard to how you conduct your business.  In the conduct of your business, you have obligations to the state and obligations to the public at large.  One of those obligations is to abide by all the laws and regulations against discrimination.  The Indiana law would eliminate those business obligations not to discriminate.  That is why the Indiana law is wrong and so very dangerous.  It can not be allotted to stand.

Read the Federal Religious Freedom Restoration law here:

Read about the benefits of incorporation here:

Thursday, March 12, 2015

There Are Two Major Errors of Fact in Republican Tom Cotton’s Letter to Iran

Senator Sen. Tom Cotton (R-Ark) who authored the letter to Iran offering Iranian leaders instruction on the U.S. Constitution, treaties and executive agreements that 46 other Republicans signed apparently doesn’t know much about the Constitution, treaties or executive agreements.  He got at least two things wrong, really wrong.

Error #1:  The Senate does not “Ratify” treaties

Cotton wrote:

Not true.  The Senate’s own website in a briefing for Senators on Treaties, says this about the role of the Senate in the ratification of treaties:

The Senate does not ratify treaties—the Senate approves or rejects a resolution of ratification. If the resolution passes, then ratification takes place when the instruments of ratification are formally exchanged between the United States and the foreign power(s).
As Jack Goldsmith, the Henry L. Shattuck Professor at Harvard Law School, writes the constitutional role of the Senate in regard to treaties is to advise and consent.
The Senate takes up a resolution of ratification, by which the Senate formally gives its advice and consent, empowering the president to proceed with ratification”

Goldsmith cites a report prepared for the COMMITTEE ON FOREIGN RELATIONS
UNITED STATES SENATE by the Congressional Research Service in 2001:

“It is the President who negotiates and ultimately ratifies treaties for the United States, but only if the Senate in the intervening period gives its advice and consent.”  Ratification is the formal act of the nation’s consent to be bound by the treaty on the international plane.  Senate consent is a necessary but not sufficient condition of treaty ratification for the United States.  As the CRS Report notes: “When a treaty to which the Senate has advised and consented … is returned to the President,” he may “simply decide not to ratify the treaty.”

A treaty isn’t “ratified” by the Senate.  It is “ratified” by the President with the advice and consent of the Senate.

Error #2:  Even non-binding executive Agreements can’t really be revoked “with the stroke of a pen” by future presidents nor can Congresses easily “modify the terms of the agreement at any time.” as Cotton suggests.

Cotton wrote:

In Cotton’s world, any “executive agreement” negotiated by Obama would not be worth the paper it was printed on since it could be easily undone by a future president or Congress.  Not true.  While a future President theoretically could unilaterally terminate an executive agreement and Congress could theoretically modify the terms of an executive agreement, the process would not be nearly so easy or free of significant consequences for the country as Cotton implies.  Politifact addresses this in a recent fact check:

First, says Politifact, The possible agreement with Iran is being negotiated between the five permanent United Nations Security Council members plus one: the United States, the United Kingdom, France, Russia and China, plus Germany. So for the agreement to be truly modified, the other signatories would have to sign off.  No future President or Congress can dictate what these other countries might do.  The agreement would remain in force regardless of what a future president or Congress did.

Second, any effort by a future President or Congress to modify or cancel an agreement could result in a violation of international law which treats such agreements as legal commitments between nations that cannot be easily undone.  The U.S. would, in the eyes of many, become a rogue nation, not to be trusted.

Finally, the U.S. depends upon executive agreements in managing its relations with other governments.  Any president who vacated an executive agreement made by a former president would risk creating significant problems in international relations for his own presidency.  Politifact quotes Jeffrey S. Peake, a Clemson University political scientist on this point.

"For the president to vacate an executive agreement would be quite problematic," Peake said. It "would be largely unprecedented and cause the U.S. a great deal of grief in diplomacy, especially since 95 percent of international agreements are done via executive agreement rather than the constitutional treaty process." Indeed, Peake said, "It could call into question America’s commitment to the vast majority of her international agreements."

Bottom Line:  Senator Cotton and the 46 other Republicans need to learn a lot more about the U.S. Constitution, the role of the Senate, and international law before they go about instructing the leaders of other countries about executive agreements, our Constitution, the role of the U.S. Senate, and, I suspect, just about anything else.  If these guys were bulbs on a Chistmas tree, they wouldn’t be very bright.

Read more about executive agreements and treaties at these links:

Wednesday, March 11, 2015

The Truth About the Clinton Email Story

The Clinton email controversy isn’t about what you think it is about or what the media says it is about.  I’ll give you the real story later in this post.

Let me begin with a good article by Jason Linkins at the Huffington Post which begins to shed some light on what’s going on and why it is something Clinton can’t easily solve.  Linkins makes a good point that the whole Hilary Clinton email flap is probably unsolvable.  Essentially,says Linkins, there is nothing she can do to satisfy everyone, particularly not the Republicans or the media. Had she handled her email differently, says Linkins, things might have been—well—different.

Obviously, the simplest thing for Clinton to have done would have been to open and maintain some sort of "" email account and conduct State Department business in that domain. Had she done so, there wouldn't be an issue. In fact, had she done so and simultaneously had a personal email account on the side, this still wouldn't be an issue, because most people would find the notion that Hillary Clinton is not allowed to have a private email account to be insane. But by commingling the two -- government and personal -- Clinton opened the door to this criticism, because we can't be sure by what rules Clinton follows to guide her decisions to archive or delete emails. Does she follow State Department guidelines, or her own whims?

Sounds good at first read.  If Clinton had just used a government email account for work and a personal email account for personal stuff, then there wouldn’t be any email controversy.  But, is that true?

First, the email controversy revolves, so we are told, around questioning Clinton’s control over which of her emails were work-related and which were not.  Clinton has said that her attorneys followed a systematic three-step process in determining which emails were work-related and should be turned over to the State Department—(1) they searched for emails sent to a “.gov” address, (2) they searched for emails containing the first and last names of 100 State Department and/or U.S. officials, and (3) they did a key word search for emails mentioning words like “Benghazi”, “Libya” and so on.  See:

Clinton critics say they aren’t satisfied.  They question not only the search criteria but whether it was followed.  For them, Clinton just had too much control of deciding which emails were work-related and which weren’t.  It’s a bogus criticism intended to camouflage what the story is REALLY all about. 

Here is why the Clinton control controversy is bogus. Clinton would have had just as much control if she had used two email accounts, one government and one personal.  Why?  Because SHE would have been the one who decided which account to use when sending an email, regardless of the actual content of the email.  If she didn’t want some work-related email to be archived, all she had to do is just call it “personal” and send it using her personal account.  That’s not much different than making the work/personal call after the fact.  As Clinton noted, government officials who have both government and personal email accounts, and most do, make these calls every day.

Of course, it would have been different if Clinton had used a government email account exclusively for both work-related and personal email.  Of course, then she would have been criticized I imagine for conducting personal business using government servers.

What is the Clinton Email Story really all about?

So, if the whole flap about the use of government accounts vs personal email accounts is bogus, what is this email controversy really all about?  Linkins thinks it is just politics and sleaze-hunting.  I agree.  Linkins writes:

I promise you, nobody in the wide world is interested in reading emails pertaining to Clinton's rote, day-to-day State Department work, and the number of political reporters in Washington who are genuinely concerned with State Department transparency is too small to be of statistical significance.
What people want to find is evidence of some buzzy internecine feud or conflict with the White House, some career-crippling statement of policy or opinion, some private message in which Clinton says something intemperate about a political opponent, or some tawdry act of State Department-Clinton Global Initiative synergy…

Failing that, evidence of some embarrassing family problem, health issue, or lifestyle choice would be what the press would seek to uncover in a Clinton email cache.

Bottom Line  There are only two kinds of people who give a damn about this entire Clinton email flap.  First, Republicans and other assorted Clinton-haters are looking for some dirt they might be able to use to prevent her from getting the Democratic Party nomination.  They are terrified that she just might win and four or eight years of another Clinton in the White House is something they could not endure.  Second, the media and pundits are just interested in getting hold of some Clinton miscue that they can turn into a real sleazy soap opera to attract readers and viewers during the slow spring and summer season.  They just need a good story.

Prediction.  This email story will have no impact on the 2016 election or Clinton’s possible candidacy.

Tuesday, March 10, 2015

47 Republican Senators May Have Just Committed a Federal Crime

On Monday, March 9th, 47 Republican Senators wrote a letter to the government of Iran in an effort to interfere with and sabotage negotiations between the Obama Administration and the government of Iran with regard to Iran’s development of nuclear weapons.  

The following Republican Senators signed this letter.  By doing so may have broken federal law (The Logan Act).  If found guilty of this federal crime, these Senators could  be fined and imprisoned for up to three years each.  They should also be removed from office.

Senator Tom Cotton, R-AR
Senator Orrin Hatch, R-UT
Senator Charles Grassley, R-IA
Senator Mitch McConnell, R-KY
Senator Richard Shelby, R-AL
Senator John McCain, R-AZ
Senator James Inhofe, R-OK
Senator Pat Roberts, R-KS
Senator Jeff Sessions, R-AL
Senator Michael Enzi, R-WY
Senator Michael Crapo, R-ID
Senator Lindsey Graham, R-SC
Senator John Cornyn, R-TX
Senator Richard Burr, R-NC
Senator John Thune, R-SD
Senator Johnny Isakson, R-GA
Senator David Vitter, R-LA
Senator John A. Barrasso, R-WY
Senator Roger Wicker, R-MS
Senator Jim Risch, R-ID
Senator Mark Kirk, R-IL
Senator Roy Blunt, R-MO
Senator Jerry Moran, R-KS
Senator Rob Portman, R-OH
Senator John Boozman, R-AR
Senator Pat Toomey, R-PA
Senator John Hoeven, R-ND
Senator Marco Rubio, R-FL
Senator Ron Johnson, R-WI
Senator Rand Paul, R-KY
Senator Mike Lee, R-UT
Senator Kelly Ayotte, R-NH
Senator Dean Heller, R-NV
Senator Tim Scott, R-SC
Senator Ted Cruz, R-TX
Senator Deb Fischer, R-NE
Senator Shelley Moore Capito, R-WV
Senator Bill Cassidy, R-LA
Senator Cory Gardner, R-CO
Senator James Lankford, R-OK
Senator Steve Daines, R-MT
Senator Mike Rounds, R-SD
Senator David Perdue, R-GA
Senator Thom Tillis, R-NC
Senator Joni Ernst, R-IA
Senator Ben Sasse, R-NE
Senator Dan Sullivan, R-AK


Logan Act (18 U.S.C.§ 953) reads as follows:

§ 953. Private correspondence with foreign governments.

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

1 Stat. 613, January 30, 1799, codified at 18 U.S.C. § 953 (2004).


The President of the United States has the sole authority to represent the United States in negotiations with foreign governments, according to a ruling by the Supreme Court in the case of United States v. Curtiss-Wright Export Corporation (1936). 

299 U.S. 304
United States v. Curtiss-Wright Export Corp. (No. 98)
Argued: November 19, 20, 1936
Decided: December 21, 1936
14 F.Supp. 230, reversed.

“[T]he President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it.

Read the full text of the decision here:


Read more about this possible criminal act here:

Read Vice President Joe Biden’s condemnation of the possible criminal behavior of these Republican Senators here:


 The 47 Senators who signed the letter to Iran should be tried for possibly committing a federal crime by violating the Logan Act.  At a minimum, these 47 Senators should be censored for conduct unbecoming a U.S. Senator and for bringing disgrace upon the Senate of the United States. 

Wednesday, March 4, 2015

The Future of Obamacare May Hinge on One Key Constitutional Issue--It Isn’t What You Think

Most observers agree that we are likely to see a 5 to 4 decision in the case of King vs Burwell which will decide the fate of Obamacare.  It seemed clear during oral arguments today that the four liberal justices will vote with the government to allow subsidies to be offered to citizens of all states, not just those residing in states that set up their own exchanges.  It seemed equally obvious that Scalia, Alito, and, most likely, Thomas will vote with the Republican challengers who are seeking to destroy Obamacare.  

The questions from Chief Justice Roberts and Justice Kennedy gave no clear indication concerning how they might vote but Justice Kennedy raised an issue that may be the key to how the court will decide the case and how he might vote.  If Kennedy sides with the four liberal justices, Roberts may well join the majority upholding Obamacare in order to avoid being on the losing side in such an important case.  Kennedy's vote could then make the difference between a 5 to 4 or 6 to 3 vote for the government or a 5 to 4 or 6 to 3 vote that would gut Obamacare.

The key issue upon which the court may decide the case
Kennedy's swing vote and the court's decision may hinge on an issue few people have discussed until now.  On several occasions, Kennedy brought up the question of whether Congress was coercing the states to set up state-run exchanges when it wrote the Affordable Care Act.  The key to the court’ ruling in King vs Burwell may hinge on how the court, particularly Justice Kennedy decides this one issue:

Was Congress coercing the states by threatening them with dire consequences stemming from a loss of subsidies if they failed to establish state-run exchanges?

In previous cases, particularly SOUTH DAKOTA v. DOLE, 483 U.S. 203 (1987), the Supreme Court has ruled that it is constitutional for Congress to place conditions on the states receiving federal funds, such as the subsidies for their citizens to purchase health insurance, as long as the conditions are not “so coercive as to pass the point at which pressure turns into compulsion. Pp. 209-212.”

The challengers have a "Constitutional Problem" 
The challengers to Obamacare in the King vs Burwell case argue that Congress intentionally inserted the phrase “established by the state” in the section of the act discussing the subsidy in order to force the states to set up state exchanges or risk dire consequences.  Congress was saying to the states, argue the challengers, that if a state refused to set up its own  state exchange then its citizens would lose subsidies and the state’s insurance market would be thrown in the so-called “death spiral” of ever increasing health insurance premiums.  No one disputes that the end of subsidies in the states with no state-run Obamacare exchange would create serious problems for these states and, perhaps Obamacare in general.

If the challengers are right , as Kennedy pointed out during oral arguments, then the court is faced with a serious constitutional problem in ruling for the challengers.  Essentially, the court would have to rule that Congress COULD coerce the states, something the court had warned Congress in South Dakota vs Dole and other cases that it could not do.  Additionally, the court has long ruled that when Congress places conditions on the states receiving federal funds, it must make those conditions clear. Something it didn't do when it buried the phrase "established by the state" in one small section of the Act.  In fact, officials in at least 22 of the 34 states who refused to set up exchanges have said they were never informed that their citizens would lose subsidies if they failed to set up a state-run exchange. 

In short, if Congress inserted the wording “established by the state” in order to coerce the states into setting up their own Obamacare exchanges, then that part of the act would be unconstitutional if the threat of loss of subsidies would “pass the point at which pressure turns into compulsion.”  In supporting the challengers, the court would have to either (A) find that the threat of loss of subsidies and insurance “death spiral” wasn’t serious coercion, which even the challengers agree it was or (B) reverse itself and find that it was Constitutional for Congress to coerce the states, overturning precedent and threatening the whole concept of federalism built into the Constitution.

Irony here:  The Republican challengers to Obamacare who brought the King vs Burwell case are advocates of states' rights and seek to limit the power of the Federal government.  And yet, if they win their case, then the power of the Federal government over the states could be increased since there will be fewer Constitutional limits on the ability of Congress to coerce state governments to undertake activities or adopt programs they oppose.

Bottom Line: The fate of Obamacare may well hinge on how Justice Kennedy and, perhaps Roberts, rule on the issue of whether Congress can coerce the states and/or whether Congress was trying to do so when it wrote the Affordable Care Act.

Read more here about the oral argument and the coercion issue here:

Read about the South Dakota vs Dole case here:

Tuesday, March 3, 2015

Our Government is Broken and It Probably Can’t Be Fixed

Our form of government is very likely irretrievably broken.  The most we may be able to expect from the federal government is constant crisis, indecision, and the inability of Congress, the President, and the federal courts to govern.  That’s the conclusion of  Matthew Yglesias in a recent article in Vox.  (See:  Yglesias writes:

“To understand the looming crisis in American politics, it's useful to think about Germany, Japan, Italy, and Austria. These are countries that were defeated by American military forces during the Second World War and given constitutions written by local leaders operating in close collaboration with occupation authorities. It's striking that even though the US Constitution is treated as a sacred text in America's political culture, we did not push any of these countries to adopt our basic framework of government.”

Just about every other country has created a parliamentarian form of government rather that the presidential form found in the U.S.  Why? It’s very simple writes Yglesias:

“In a parliamentary system, deadlocks get resolved. A prime minister who lacks the backing of a parliamentary majority is replaced by a new one who has it. If no such majority can be found, a new election is held and the new parliament picks a leader. It can get a little messy for a period of weeks, but there's simply no possibility of a years-long spell in which the legislative and executive branches glare at each other unproductively.”

But within a presidential system, gridlock leads to a constitutional trainwreck with no resolution.

And, the more ideologically polarized our government becomes—assuming it is possible for it to get more ideologically polarized—the more often we will see gridlock leading to one constitutional trainwreck, as Yglesias puts it, after another.

Yglesia notes that in a climate of sharp ideological differences, both sides begin playing "constitutional hardball.”

Constitutional hardball describes legal and political moves "that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with existing pre-constitutional understanding." In other words, moves that do not violate the letter of the law, but do trample on our conventional understanding of how it is supposed to work.”

Conservative Republicans faced with a liberal, Democratic Senate and a Democratic President begin using the filibuster to not just block the President and majority party on the big issues but on just about every piece of legislation and every Presidential appointment.  Not getting their way, they threaten to even shut down the government completely.  As Yglesias notes, the Republicans weren’t doing anything illegal or unconstitutional, but what they were doing was “in its intent and its scope, unprecedented.”  The same could be said for Obama’s counter moves.

As relations with Congress have worsened, the Obama administration has set about expanding executive authority over domestic policy to match Bush-era unilateralism in the national security domain. This came to the fore most publicly with Obama's decision to protect millions of unauthorized migrants from deportation without congressional agreement.

Again, in spite of what you hear from Republicans and Fox News, there was nothing illegal or unconstitutional about what Obama was doing, what he has said he felt he had to do to get something done in Washington.  However, it is unprecedented.

Yglesia sees no hope that things will get better.  Congressional districts are now, for the most part, gerrymandered by Republican state legislatures to ensure that the House of Representatives will be filled with Republicans with extremely Conservative views facing a minority Democratic caucus with less extreme but decidedly liberal views.  Today the divide in the House is so great along ideological lines that, as someone said, the most liberal House Republican is far more conservative than the most conservative House Democrat.  There is almost no overlap between the two parties, at least in the House and this ideological divide continues to increase in the Senate as it does among the American public in general.  Consider these charts prepared by Pew Research.


Could A Dictatorship Be in Our Future?

In a separate article at Vox, Dylan Matthews predicts that continuing and worsening gridlock in Congress will lead to a tremendous expansion of presidential power regardless of which party controls the White House or whether the President is a liberal or conservative.  Matthews notes:

“Any president worth his salt is going to want to make major revisions to statutes and to alter the fiscal status quo. They're going to want to raise taxes on the rich and increase transfer programs, or slash taxes across the board while restructuring entitlement programs, or rewrite No Child Left Behind and make Medicare more cost-effective, and so on. Their legacy as more than placeholders depends on leaving some kind of legislative mark.”

Under a best case scenario, writes Matthews, we could end up with an ” an elective dictator but retain peaceful transitions of power.”  In the worst case, we end up with a President with greatly expanded powers who decides to use (those powers) to punish political enemies, interfere with elections, suppress dissent, and so forth.”

Matthews doesn’t think that either scenario is very likely for a long time, perhaps ever.  However, it could happen.  That’s disturbing.  Matthews thinks it is time for us to begin thinking about a new and more workable and lasting parliamentarian form of government.  Why not?  We did it before in 1788.