The Hartzler Amendment


In June of 2016, Secretary of Defense Ash Carter announced that the ban on transgender servicemembers would be lifted. Secretary Carter said that he would tell commanders to “start with the presumption that transgender people can serve openly without impact on military readiness.”  With that he also outlined that those who are transgendered and in the early process of their transition would not be allowed to enlist. An individual would have to provide documentation from a doctor showing he has been living as his new gender identity for 18 months and is free of any distress. The announcement indicated that the military would begin recruiting new transgender recruits. US military services chiefs asked for an additional 6 months to “study the issue” and complete work to help integrate new transgender recruits. Under the new guidelines, transgender soldiers would be able to serve openly and could not be discharged just for being transgender.As a bit of background, after the repeal of “don’t ask, don’t tell”, while gay, lesbian, and bisexual service members were allowed to serve openly but as part of the exclusions, those who had “psyschosexual disorders” could not serve openly and could be medically discharged if they were suspected of being transgender.

As we know from past experience with the implementation of “don’t ask, don’t tell” and before, servicemembers serve with those ma not conform with the straight heterosexual identification. Prior to “don’t ask, don’t tell” and the subsequent repeal, many servicemembers served (and continue to serve) in the military honorably while identifying as something other than heterosexual. This is the case with transgender servicemembers, despite the fervent beliefs of others. The Williams Institute at University of California at Los Angeles estimates that there are over 15,000 transgender individuals serving on active duty or in the Guard or Reserve forces. Perhaps more surprisingly, they estimate that over 130,000 veterans or retired from Guard or Reserve service identify as transgender. The Rand corporation estimates that there are between 1,320 – 6,630 transgender service members in the active component.

Vicky Hartzler and the talking points

Rep. Vicky Hartzler, a Republican serving the 4th Congressional District of Missouri, initially introduced and then withdrew an amendment banning transgender people from serving in the military. She specified that if the military doesn’t block the new policy from being implemented, she would reintroduce her amendment to the National Defense Authorization Act. She would allow the banning of transgender people from service into law. Facing some pressure, she decided to soften the language of her amendment. Instead of calling for a ban, she instead introduced an amendment that would prohibit funding from the Department of Defense to provide medical treatment (other than mental health treatment) related to gender transition. A senior House Democratic aide told Huffington Post that Jim Mattis called Hartzler and asked her to pull the amendment.

Rep. Hartzler made two objections to having trans soldiers serve openly and be recruited. The first is that it would be too expensive. She claimed that in the first 10 years, it will cost the military $1.35 billion to cover transition-related surgeries for new servicemembers. This $1.35 billion is part of “precious taxpayer money.”

This argument that the money from taxpayers should not be used to pay for transition surgeries is one that we will revisit, again.

Her other objection is that transgender individuals are not ready to serve because of their medical condition. If “flat feet, asthma, and sleepwalking are disqualifying, so too should being transgender, because it’s a medical condition.” She concludes her parade of horribles with an idea that if transgender individuals are recruited, there would be disturbing privacy issues because you have to shower with individuals born of the opposite sex.

Duncan Hunter, a Republican from California, said “I could not imagine having to share berthing or showers with somebody who was a girl and din’t have the surgery to become a man but kept the girl stuff and now she’s with a bunch of guys or vice versa.”

Somewhat forgotten in these statements is the role of transgender individuals who have already served or are currently serving.

Rep. Hunter was also against ending the ban of gay soldiers in the military. He framed the argument, then, just as he does now, around the issue of privacy. In a 1993 talk, Dr. Frank quoted Hunter as saying

Why won’t you listen to the mothers and fathers, military leaders like General Schwarzkopf and hundreds of thousands of young Americans in uniform who are begging you not to force our young Marines, soldiers, sailors and airmen into close living quarters with homosexuals?

Of course this issue never really arose.

After the ban of gay soldiers was lifted in the UK, a press official at the Ministry of Defence released that the worries of privacy and sharing showers with gay soldiers was a dud. Despite widespread threats of resignations from the military, they did not see almost anyone resign because of the lack of privacy.

The final objection that is implicit in these critiques are the idea that the military should not be involved in “social experimentation.” This, if you know your military history, is the same argument that was previously used to argue against military integration and more recently the argument used to prevent gay or lesbian soldiers from serving openly.

The financial costs

Nobody really knows where Hartzler is getting her idea of how much it will cost. Her estimation of $1.35 billion over a ten year period is also based around a cost of $130,000 per surgery. Quick math would be that there would be just over 10,000 of the gender surgeries over the course of 10 years. Her estimation is that this is basing it off of 30% of those deciding to opt for the surgeries, which would mean about 3,000 trans soldiers to be recruited/year.

The Rand Corporation which put together a study on how transgender service members would affect the military. Based on their estimations from private health insurance data, they estimate that between 29-129 service members would utilize transition related health care. They also found that about 140 service members would initiate the transition-related hormone therapy. This is compared to 278,517 service members accessing mental health services in FY 2014.

The Rand Corporation’s estimation was that the health care cost by allowing transgender soldiers would increase between $2.4 to $8.4 million annually. This would hardly affect a $6 billion in FY 2014.

Military readiness

The critique that something would affect military readiness is a tried and true strategy. During the debates prior to the implementation of “don’t ask, don’t tell” Senator Sam Nunn and Colin Powell framed their objection to homosexuals serving in the military around troop readiness. In Unfriendly Fire by Dr. Nathaniel Frank, he notes that Senator Frank Murkowski framed his objection to homosexuals serving in the military around health issues. Even after being assured of HIV and AIDS screenings, he objected based on the strain to the Veterans Administration.

The Rand Corporation also took a look at what would happen for military readiness. They concluded that less than 0.0015% of the total available labor-years would be affected. This is, in part, because less than 0.1% of the total force would seek transition-related care that “could disrupt their ability to deploy.”

The Marine Corps who previously argued against ending the gay band released a report that concluded that lifting the gay ban is “unlikely to pose any significant risk to morale, good order, discipline, or cohesion.” I am going to echo the arguments from ending the ban of gay soldiers to ending the ban on transgender soldiers. As Lawrence Korb, the assistant secretary of defense under Ronald Reagan wrote that “telling military members that they can’t deal with open gays, that they’re not mature enough or well disciplined enough is divisive.” I believe that telling soldiers that they are not mature enough to handle transgender soldiers is likewise divisive.

In fact, we know from the past that people have served with transgender soldiers and are currently serving with them. There has been nothing to show that troop readiness is lower because of it.

The arguments that cohesion for troops will disappear have been made each time that the expansion of military service has been expanded beyond straight white males. Each time, it has been decisively been shown to be wrong. Why would we assume that this will be the time that it will finally fail? Because…that’s what people say.

Don Bacon

While the Hartzler Amendment is not overturning the decision put in place by the Pentagon under the Obama administration, the amendment trying to limit the healthcare provided to those willing to serve is a direct message to transgender soldiers that their sacrifice is not worth those of others. The reason that it is important to combat lies and misstatements is because people are being treated very differently and in a poor manner. They are being treated this way because certain people believe that they are having an adverse role in the military.

Rep. Bacon gave an interview on KFAB discussing the role of transgender soldiers. He praised Rep. Hartzler changing the scope of her amendment to not have taxpayer money pay for any “conversion surgery or anything like that.” It should be noted that conversion surgery is considered medically necessary for those who suffer from gender dysphoria. But there are more treatments than just surgery for those who suffer from gender dysphoria and there are more health related issues than just surgery. The American Medical Association, since 2008, has recognized that hormone therapy is also considered medically necessary for those who suffer from gender dysphoria. For some, gender-affirming surgery may be the only effective treatment.

He also called for respect to everyone, as he likes to do from time to time. This respect is limited to the impact that you have on taxpayers, however, and if you do something that he deems that the taxpayers do not want then that respect can be taken away. Effectively determining that some people are not worthy of being covered for health care coverage that they are entitled to through their sacrifice and willingness to serve the country is, in fact, the opposite of respect.

Rep. Bacon is concerned that a number of people would not be able to deploy because they are going through conversion therapy which does impact readiness, is his argument. Again, the Rand Corporation found that this is a miniscule number. He also then compares when he took too much painkillers and not being able to be around nuclear launch codes before deciding to reassert what the vote was about.

He could mention that transgender Americans have served openly in forward locations such as Camp Anaconda and Balad Air Base in Iraq, New Kabul Compound and Kandaha Air Base in Afghanistan, and aboard US Navy ships operating in the Persian Gulf. Currently 18 other countries, including 2 of our strongest allies in Britain and Israel, allow transgender soldiers. Certainly, Rep. Bacon understands this from his close military friendships with soldiers in Israel.

The vote was about whether US taxpayers should cover surgeries and things like that, he says. This is true. But the vote was whether or not transgender soldiers should have their care covered that they were entitled to when they signed up for military service or should they be treated like second class soldiers. And the answer for Rep. Bacon is that they should be treated like second class soldiers. By ensuring that their care is not taken care of, Rep. Bacon is effectively deciding that transgender people should not serve in the US military and retroactively degrades the service of those serving or who have previously served. Certainly, this is the conclusion of his vote, even if he refuses to state it outright. At the very least, he is discouraging those who are transgender from serving in the military. I wonder what degrades military readiness more, transgender soldiers or certainly, none at all.

The vote

Ultimately, this amendment failed. 209 Republicans voted in favor of the amendment, including Don Bacon. 24 Republicans joined all 190 Democrats in rejecting the amendment. While Bacon calls for an open discussion about the issue, perhaps he should talk to Secretary of Defense Jim Mattis regarding it.

This has been emblematic of Bacon’s tenure in office. He consistently calls for people to be “respectful” or civil while advocating and supporting policies that do anything but. While many members of Congress who are facing tough challenges in 2018 or represent moderate districts have tried to be moderating their stances so that they can get re-elected, Rep. Bacon has consistently voted the Republican leadership line. The idea, although not a hard and fast rule, is that you should represent your constituents and their ideology to get elected and re-elected. Certainly, people like Ron Johnson have shown that to be not 100% true.











The first day of Congress in 2017, Rep. Jeff Denham of California’s 10th District, introduced his priority legislation in the ENLIST Act. This bill is fairly simple, immigrants not lawfully present in the US can enlist in the armed services and can earn lawful permanent residency for doing so. This is assuming that the person was younger than 15 when they entered the United States. It’s a decent bill that would provide a path to legal residency for many immigrants in the United States here illegally.

Somewhat surprisingly, Rep. Don Bacon supported the bill by being a co-sponsor of the bill. There are 203 cosponsors of the bill, currently. It has widespread bipartisan support It is unlikely that it will be put up for a vote, much like it has not in the past. Rep. Denham introduces the bill fairly consistently and has been fairly moderate on immigration issues.

Marine Corps Gen. Peter Pace testified before Congress “some eight, nine, or ten percent fewer immigrants wash out of our initial training programs than do those who are currently citizens.” In the ACLU’s report, “Discharged Then Discarded”, they note that this view is often repeated in other military reports. One report said “relative to citizen recruits, noncitizen recruits generally have a stronger attachment to serving the United States, which they now consider to be ‘their country’ and a better work ethic.” Noncitizen retention rates are higher than of U.S. citizens. According to the ACLU, the dropout rate for noncitizens are nearly half of that of U.S. citizens when service reaches four years.

The ACLU provides a brief history, in their report, about how noncitizens could serve in the military. In 2006, Congress limited eligibility to serve in the military to Lawful Permanent Residents. Prior to 2006, undocumented immigrants could enlist and be conscripted during wartime. Congress left a provision for the Secretary of Defense to determine if other noncitizens could serve, if it is vital to the national interest. The Department of Defense created the Military Accession Vital to the National Interest (MAVNI). This authorized a maximum of 1,500 of “legally present” noncitizens to join the military. In 2014, they expanded to included DACA individuals and came to the United States prior to the age of 16. By 2016, the cap increased from 1,500 to 5,000. Outside of MAVNI, Congress rejected efforts to expand the pool of eligible noncitizens. Despite that, other noncitizens have enlisted in the military outside of MAVNI by accident or due to “deceptive practices of military recruiters.”

Lawful permanent residents are eligible to naturalize after five years. The ACLU provides the relevant sections of the Immigration and Nationality Act. There are different requirements depending on if the noncitizen is serving during peacetime or wartime.

Peacetime naturalization

An LPR who serves in the military during peacetime can naturalize under Section 328 of the INA, if he or she served honorably in the armed forces for a period or periods aggregating one year. If separated from the service, the separation must be under honorable conditions. Both ‘Honorable’ and ‘General – Under Honorable Conditions’ discharges qualify; discharge types such as ‘Other than Honorable’ do not

US Customs and Immigration Services notes on their fact sheet about qualification for naturalization and citizenship. They write

The President signed an executive order on July 3, 2002, authorizing all noncitizens who have served honorably in the U.S. armed forces on or after Sept. 11 2001, to file for citizenship under section 329 of the INA. Section 329 also covers veterans of certain designated past wars and conflicts. The authorization related to the War on Terrorism will remain in effect until a date designated by a future presidential executive order.

USCIS has interpreted this statute to include a requirement of a separate and additional showing of “good moral character.” The ACLU and many reasonable people look at military service as its own showing of “good moral character.” The 9th Circuit, as the ACLU notes, agrees. There is not a mention of the good moral character in the statute. It would simply be easier legislatively to require that USCIS interprets the INA statute to equate military service with good moral character.

The ENLIST Act is a pretty good bill. I would like it to also codify the interpretation of the INA statute so that “good moral character” is not used to determine eligibility for either legal status or citizenship.

Bacon also co-sponsored legislation from Mike Coffman, the BRIDGE Act. The BRIDGE Act would make it possible for certain immigrants to receive “provisional protected presence” and work authorization. This protected presence and work authorization would only last, at most three years. There is not a path to citizenship for immigrants under the BRIDGE Act.  To qualify for the BRIDGE Act,it is essentially the same requirements for the Deferred Action for Childhood Arrivals (DACA). From October of 2012 to October 2016, nearly 750,000 unauthorized immigrants received DACA.

The requirements for the BRIDGE Act and DACA would be that the person would have to be at least 15 years old; born after June 15, 1981; came to the US before their 16th birthday; lived continuously since June 15, 2007; been physically present since June 15, 2012; at the time of filing an application need to be in school or in a program aimed at receiving a high school diploma or passing a GED exam; have graduated; have received the GED; or be an honorably discharged veteran of the Coast Guard or U.S. Armed Forces; and not have been convicted of a felony, a significant misdemeanor, or three or more misdemeanor offenses.

This is not any type of comprehensive immigration plan nor does it provide for a path to citizenship. the bill would merely kick the can down the road for three years. Then perhaps hundreds of thousands of immigrants would feel their status in limbo under a new Presidential administration. Bacon opposes “amnesty” for those here illegally because he does not think it’s fair to those waiting to come here. His issue position from his campaign website said the following

“We need to have employer enforcement when it comes to hiring illegals. This is the root cause of our illegal immigration problem. We also need to secure our borders. It is a security disaster to have over 300,000 illegal immigrants crossing our border every year. Finally, we owe it to the 4.5 million people who are waiting to come to the United States legally to not give amnesty for citizenship to those who came here illegally.”

Rep. Bacon and others try to carve through a middle ground to give immigrants a legal status even if it is below citizenship status. I believe that in their mind, this moves undocumented immigrants out of the shadows. The problem is what happens after they are out of the shadows. In this bill, the answer is, well they’re out for three years. Without any details as to what happens after that. I’m not sure what the end goal of this type of legislation is. It’s a stopgap legislation leading to more comprehensive immigration reform.

After the Gang of Eight immigration did not advance any further in Congress due to inaction in the House of Representatives, Marco Rubio announced his newfound belief that we should address immigration in a piecemeal way. I disagree with the approach, as a matter of sound policy, but if it were to advance in such a way, the BRIDGE and ENLIST Act would provide paths forward to talk about how immigration should be fixed going forward.

At any rate, while Bacon likes to cite public support for some of his positions including some of his more prominent conservative positions, he is oddly silent about polling on a path to citizenship. About 50% of Republicans support a path to citizenship. In total about 65% of US adults support a path to citizenship for illegal immigrants. It seems odd to me that those who have either served in the military or are continuing with education would be excluded from a path to citizenship. It has become somewhat fashionable to make arguments in favor of naturalizing citizens is the argument based on merit. If someone is good enough, they should be able to get citizenship or at the very least legal status. I do not buy the argument on merit but I am making it to adopt the style that is being used, currently.




The Moral Courage of Don Bacon

Rep. Don Bacon’s statement when he decided to run for Congress cited his moral courage as something that Nebraskans in the 2nd District needed to help fix Washington. In his announcement that he was running, he said,”To change Washington, we need new leadership with moral courage to make tough decisions. That’s why I’m running for Congress.” Much like his vaunted calls for civility, Rep. Bacon was faced with decisions that required moral courage and he failed.

While we will take a deeper dive into the policies and bills that Rep. Bacon supports or opposes, I’m using examples from his campaign in this piece.


In May of 2016, Rep. Bacon received an endorsement from Congressman Steve King which he bragged about citing King’s “strong moral courage and deep devotion to serving our nation. He is one of America’s great Constitutionalists…” Two months after the endorsement, King went on MSNBC on All-in with Chris Hayes. The transcript from The Washington Post is what follows:

“This ‘old white people’ business does get a little tired, Charlie,” King said. “I’d ask you to go back through history and figure out, where are these contributions that have been made by these other categories of people that you’re talking about, where did any other subgroup of people contribute more to civilization?”

“Than white people?” Hayes asked, clearly amazed.

“Than, than Western civilization itself,” King replied. “It’s rooted in Western Europe, Eastern Europe and the United States of America and every place where the footprint of Christianity settled the world. That’s all of Western civilization.”

To be fair to Rep. Bacon on accepting the endorsement, this did happen after he accepted it. There could have been no way to predict that King would say something like that…if you had never run a cursory Google search on Steve King in your life or even remotely paid attention to politics.

In 2013, Rep. King had a comment on immigrants coming from Mexico, claiming that for every child of illegal immigrants “who’s a valedictorian, there’s another 100 out there who weigh 130 pounds and they’ve got calves the size of cantaloupes because they’re hauling 75 pounds of marijuana across the desert.” John Boehner, then Speaker of the House, called King’s comments “deeply offensive and wrong.” But King still continued on. He doubled down on his statements noting that nobody has debunked his numbers. When ICE deported a DREAMer, he sent a tweet with a picture of a beer, saying

One of King’s hobbyhorses is to effectively repeal the 14th Amendment by declaring that in order to obtain citizenship through birth, one of your parents must be a citizen. Birthright citizenship which is enshrined in our Constitution in the 14th Amendment and followed through with citizenship laws since the beginning of our country’s founding. It is hard for me to say that someone who wants a direct assault on the 14th Amendment can be a great Constitutionalist.

During a recent controversy, King had a photo taken at his desk where the Confederate flag is visible. The Confederate States of America, although often romanticized by those on the right, were a collection of states committing treason against the United States in defense of slavery as an institution. Even for some who recognize that argue that the Confederate flag represents their heritage or state’s history. Iowa, the state where King resides and where his district resides, was not one of the states in the Confederacy. Iowa sent 76,000 men to fight for the Union. The Union, I guess I should remind people, was the army of the federal government trying to preserve the United States and end slavery. 13,000 Iowans were killed in the Civil War by the Confederacy. King proudly displays on his desk a flag celebrating treason in defense of slavery in a state that fought for the Union.

Again, perhaps Rep. Bacon had no idea that King was a Confederate supporter. King’s moral courage also showed when he was casting doubt on Barack Obama’s birthplace.

In September of 2015, King lamented the culture of America that we used to have. He placed the blame for this change on immigrants changing the culture of America.

Rep. Bacon could have repudiated the endorsement from King but he refused, citing it prominently and praising King for his strong “moral courage.” This phrase is used for King is also used to praise Rep. Bacon.

Another endorsement that Bacon had on his website was from State Senator Bill Kintner. Luckily for Bacon, I have not been able to locate where he cited Kintner’s strong moral courage (hopefully it never happened). Kintner posted on Twitter that Muslim refugees should be forced to eat bacon before they enter the country.

That wasn’t his only comment on refugees

His use of social media also included posting a picture of a beheaded woman on Facebook; claimed that Jesus was ok with the death penalty because he didn’t stop his own execution; attacked the city of Cincinnati for hosting a Pride celebration; referred to his colleagues in the Unicameral as prostitutes; called for a restoration of the guillotine with Nancy Pelosi and Ruth Bader Ginsburg pictured and labeled as guys; claimed Obama was importing Muslims; and made fun of homeless people.

In the Unicameral, Kintner claimed the NCAA was carrying on economic terrorism, introduced a bill to prove that refugee resettlement agency can pay up to $25 million or otherwise face a $1,000/day fine for each refugee they’ve resettled in the past five years, called Latinos “wetbacks” on the floor, and also flung a pen at the Speaker of the Unicameral after a vote didn’t go Kintner’s way.

That was all prior to the sex scandal that eventually led to his expulsion. Prior to that sex scandal though, he was part of an investigation for impersonating a police officer to get discounted car washes.

A simple thanks, but no thanks, from Rep. Bacon would have shown some moral courage instead of accepting the endorsement and placing it on his website.

Donald Trump

In October of 2016, the “Access Hollywood” tape leaked. The tape had Donald Trump confess that he sexually assaults women and that he gets away with it because he is a star. Trump denied that he ever acted the way he confessed to saying that it was just locker room talk. Sensing that Trump’s confession of sexual assault would not be a winning thing to tie himself to, Rep. Bacon joined other members of Nebraska’s Congressional delegation to call for Donald Trump to step down. The Omaha World Herald ran that story showing how Bacon was asking Trump to step down. Bacon’s press release on the subject was rather forceful

“Donald Trump should stand down for the good of the country,” says General Don Bacon. “His comments were utterly disgraceful and disqualifying. Trump should allow a strong conservative candidate, like Mike Pence, from the GOP to win in November. His continued candidacy guarantees a Clinton victory and four more years of higher debt, more regulations, higher taxes, and failed foreign policies. Regardless of who is our next President, I will go to Washington to be an independent voice for Nebraska’s 2nd District, not a partisan politician.”

As we will see in later posts, it’s probably a good thing that Rep. Bacon removed this press release from his website without announcing it. Only a few Republicans continued to believe that what trump said was disqualifying and would not support Trump, Bacon lacked the moral courage to do so. He pulled the press release from his website. His staff reaffirmed on Facebook that Bacon would support the nominee but only in response to comments. While early voting was happening in the 2nd District, it is extremely likely that some voters were misled by Rep. Bacon’s stance on Trump and decided to vote for him. If Trump’s comments were disqualifying and disgraceful, they did not become less so because he had a chance to win and Bacon had a chance to ride the coattails.

Rep. Bacon, however, did not live up to any part of that promise. His independent voice, much like his moral courage his calls for civil behavior, is merely a stance that he likes to take and much like this press release, he removes it when he has to make a tough choice.





Being civil and respectful: A lesson from Don Bacon

On March 24, 2015 a mere 2.5 months into the tenure of Representative Brad Ashford’s tenure in Congress, Don Bacon announced his candidacy to run against Ashford in the 2016 election. In his announcement, he said, “Nebraska does want our elected officials to be civil and respectful, and I promise to be that way…To change Washington, we need new leadership with moral courage to make tough decisions.” Bacon was able to defeat incumbent Democrat Ashford 49.4 – 47.3 thanks in large part to the conservative Sarpy County.

Unlike Fischer, who I covered previously, Bacon did not hold an elected office prior to running for federal office. So the extent that we know about his public stances and ideas is the record of public statements that he has made, the bills he has supported, and to an extent constituent mail. Each member of Congress does respond to constituent mail through their staff. In theory, the responses that you receive via mail or e-mail are vetted by staff. The staff sign off on their respective issues. So a healthcare staffer will sign off on the position of the member of Congress for healthcare. Of course, this may not always be the case. In numerous instances in the office, we had letters held up because we were waiting on approval of positions taken in these letters. If you send an e-mail, the system that is used to reply to the e-mail, is generally filtered by category sending out a response for that particular category. They are essentially canned responses to try to limit the time taken by staff and interns in responding to constituent mail, where they can help it.

Again, while this piece will touch on certain policy aspects, I want this to serve as an introduction to Rep. Bacon so I will leave a number of the heavier policy areas to subsequent posts where I can touch on all of the people in Nebraska running for office in 2018.

Civil and respectful

Bacon has touched on this idea of being “civil and respectful” multiple times. He even went so far as to make a speech on the House floor to the same effect. Unfortunately, he does not follow through with his own advice. His own press releases throughout the campaign uses “Democrat Party” or “Democrat establishment” instead of the grammatically correct phrase, “Democratic Party” or “Democratic establishment.” Oxford noted in 2014, that “it is in keeping with a longstanding tradition among Republicans of dropping the -ic in order to maintain a distinction from the broader, positive associations of the adjective democratic with democracy and egalitarianism.” The New York Times Manual of Style and Usage states “do not use Democrat as a modifier (the Democrat Party); that construction is used by opponents to disparage the party. It is a pet peeve of mine because saying as Bacon does when he says “the Democrat Party”, he is being grammatically incorrect to score rhetorical points with his base of support.

Criticism of Rep. Bacon is almost always perceived as a personal attack and he, or rather his staff, counter that the other person is lying. On February 21, 2017, The Omaha World Herald published an article about Rep. Bacon not wanting to hold town halls. They wrote

One member who rejected the idea of in-person town halls was Rep. Don Bacon, R-Neb., who said he has no plans to hold any this week – or ever – citing the potential for some people to hijack the session. Bacon represents the Congressional district including Omaha.

On February 23, after I reached out to Rep. Bacon’s office as a concerned constituent, I received an e-mail from his staff

Recently, it has been reported that I will not be holding any town halls as the Representative of Nebraska’s Second District. That is simply not true. I made a promise to do town halls across the district, and I stand by that…I have been working with my staff, alongside groups throughout the district, and we have established a schedule for our town halls and will continue to add more to the list.

A tele-townhall was announced on March 7 with the understanding that if it went well, there would be a live townhall at a later date.  The editorial staff at The Omaha World Herald held to their reporting on the issue writing in an editorial on March 13

New U.S. Rep. Don Bacon now says he plans to hold town hall meeting with his Omaha-area constituents, softening his previous position that he never would.

Just noting that on March 9th, was the first time that he said publicly that he was willing to hold public town halls (although in his March 1 newsletter, he stated that he would hold an upcoming town hall) and The Omaha World Herald stood by their earlier reporting then, too.

Unfortunately, this was consistent with Rep. Bacon’s campaign which offered misleading statements, highlighted policy platitudes, and offered personal attacks on both Rep. Ashford and Hillary Clinton. If you blindfolded me, I could read a press release from Rep. Don Bacon. Off the top of my head, the press release would read

My opponent is a career politician who votes for failed leadership of Obama/Pelosi. A vote for him is a continuation of the Democrat establishment. We have a $19 Trillion debt that we need to address. Thanks to my 30 years in the Air Force, I understand the national security issues facing our nation and my opponent does not.

If you do not believe that is representative of the press releases, you can read a number of them. Ashford Wrong on ISIS; Ashford Continues Pattern of Misleading Constituents; Clinton Email FBI Recommendation A Disappointment; Don Bacon: Clinton Speech Continues The Failed Obama/Pelosi Policies That Brad Ashford Embraces; Response To Ashford’s Demands on Denouncing Attacks on Gold Star Families; Fact Check: Ashford Starts Campaign Season By Misleading Nebraskans.

On August 2, after Republican Presidential nominee Donald Trump attacked a Gold Star family, Bacon issued a press release concluding with

Both presidential candidates, as well as Brad Ashford, should focus on critical issues such as our national security and the massive debt crisis and less on personal attacks on each other and their supporters. In my nearly 30 years in the Air Force it was important to make one’s point in a civil way, and focus on the key issues at hand.

The previous paragraph in the press release said that Clinton “lacks integrity.” Less than a week before that Bacon had attacked Clinton for her mishandling of classified information and calling Ashford a career politician. These are also personal attacks and not at all focused on the key issues at hand. Saying someone lacks integrity is a brazen personal attack.










Leadership means being able to admit you were wrong: an introduction to Deb Fischer

As we launch our coverage for the 2018 elections, we are going to pay particular attention to the races in Nebraska since that is where I have the most knowledge. We’ll kick it off with our senior Senator, Deb Fischer who is running for re-election.

2012 election

The Senate election of 2012 in Nebraska actually had quite a bit of national eyes. Ben Nelson because of the Cornhusker Kickback and providing a crucial vote for the Affordable Care Act declined to run for re-election. Former Nebraska Governor and Senator Bob Kerrey decided to run for the open seat. On the Republican side, Deb Fischer was able to pull an upset in the Republican primary and was the nominee. During a fairly contentious election, given the eventual result, Fischer portrayed Kerrey as a carpetbagger moving back to Nebraska just to run for office. Her campaign was very critical of the Kerrey campaign for accepting money from out of state contributors and challenged the assertion that Kerrey was a Nebraskan. Fischer repeatedly said that she would focus on a positive message in defeating Kerrey. She even told the Beatrice Daily Sun:

Fischer said she’s made no changes to her campaign strategy since winning the primary election and will continue to stay positive, rather than take “personal attacks” as she says her opponent has done in multiple television advertisements.
“We’re continuing to work hard and stay positive,” Fischer said. “People appreciate that and like to see the discussion on the issues and not personal attacks.That’s what we did in the primary, we stayed on the issues and that’s what we’re doing now, too.

“It’s disappointing when you have those personal attacks on you. People don’t like it. I think we showed that in the primary. They want to hear who you are and what you stand for.”

Of course for those who were watching the primaries in 2012, many would be confused about Fischer’s attack on out of state spending and running a positive campaign. A late ad in the Republican primary from a shady group called “Ending Spending Action Fund” was used bashing Attorney General Jon Bruning, saying “for character, anyone but Bruning.” Another ad was used to positively portray Fischer using some of the same footage of Fischer that her campaign used. The ad concluded that the voters should choose “one of us.” The ad buy was about $200,000 – $250,000 to run statewide. The ad came as the momentum was shifting and was “double the amount [Fischer] spent on ads for herself.”

Republican Vice President nominee Sarah Palin also endorsed Fischer. This was a big endorsement for Fischer. You may note that Palin is not from the state of Nebraska. Palin who was quite popular with Nebraska primary voters also recorded robocalls for Fischer, playing over the final days of the campaign.

Ending Spending Action Fund was a super PAC funded by Joe Ricketts. Ricketts, the wealthy patriarch of the largely conservative rich family, also spent money in other Republican Senate primaries. The super PAC had received some notice for the money spent in 2010 against Senate Majority Leader Harry Reid but arguably spent it better in the Republican primary for Senate in Nebraska. This super PAC was a large driver of funds for Fischer spending about $850,000 in support of Fischer and $650,000 in opposition to Kerrey. American Crossroads, a super PAC by Karl Rove spent nearly $1 million against Bob Kerrey in the race. Club for Growth Action spent $714,000 opposing Jon Bruning.  Overall, Fischer had $1.5 million from outside spenders supporting her and $1.8 million opposing Bob Kerrey. To put that in perspective, Kerrey had $250,000 supporting him in outside spending and $1.8 million opposing Fischer.

Fischer tried to ignore the spending of super PACs on her behalf saying that she could not control outside spending. Some of the ads implied that Kerrey cut a secret deal with the menacing Harry Reid to run for Senate. Kerrey for his part, often complained that the outside ads had more influence than his campaign. I know from experience from talking to Nebraskans that the ads of Kerrey as a carpetbagger and trying to ruin Nebraska with his New York values were a big motivator for them to vote for Fischer

Fischer and her team would likely direct me to the OpenSecrets page where I can view the in-state contributions compared to the out of state contributions for each candidate. Kerrey did receive a substantial amount of support from outside of Nebraksa, raising nearly $2.6 million from out of state and only $1.17 million in-state. Fischer did receive $1.7 million in state compared to $1.16 million out of state. But you can see where the attack on Kerrey from raising money from the outside is more than a little misleading.

On election day, despite some notable endorsements from key Republicans including Chuck Hagel, Kerrey lost handily 58-42. Fischer who ran primarily on Republican party talking points had been able to defeat a fairly strong candidate.

State Senator

The stated reason that Ending Spending Actinon Fund had supported Fischer was in part because it was her first statewide run compared to both Bruning and Don Stenberg. Fischer had been a State Senator serving the Unicameral from 2005 – 2013. Throughout the campaign, Fischer tried to appeal moderate voters  and those upset with gridlock by talking about her bipartisan appeal. In an NPR interview, she said “like most Americans, I find it very, very frustrating to watch…[In Nebraska] we have a unicameral legislature…so we have experience with working with Republicans and Democrats.”

This is a common theme with Nebraskan politicians. If you are a Republican, you make overtures about how you will work across the aisle to find solutions but once you are elected you can coast without doing so. Democrats do the same thing except they are often serious about working across the aisle and do support a number of Republican policies only to be attacked as a figurehead for Democratic leadership.

During her campaign for the primary, her ads tried to portray her as a true Nebraskan conservative.

One of the highlights of her conservative voting record were her votes against undocumented immigrants in Nebraska. LB239 which would allow undocumented immigrants who graduated from a Nebraska high school, who have lived in Nebraska for at least three years, and pledged to seek permanent legal status to pay in-state tuition for college instead of the more expensive out of state. Deb Fischer voted against the legislation and voted not to override the Governor’s veto.  Fischer also voted against LB599 and not to override the Governor’s veto. LB599 would provide child health assistance, pregnancy, and prenatal care for all children regardless of the mother’s immigration status for those making less than or equal to 185% of the federal poverty line.

It is, perhaps, not surprising that Fischer also voted for a series of bills that most would consider to be pro-life. She voted in favor of LB 675 which would require a physician to display an ultrasound prior to an abortion. She co-sponsored LB 1103 which prohibits abortions after 20 weeks of pregnancy. She voted in favor of LB 594 to go through a screening process for women who are seeking an abortion. She also voted in favor of LB 22 which prohibited insurance coverage of abortion. Undocumented immigrants or immigrants who are not in legal status who find themselves pregnant are in a situation where they cannot access the prenatal care that they need and seemingly low on options thanks to votes by Fischer. Pro-life often only means pro-life for certain subsections of our population.

Pro-life legislation is framed around abortion. Those who take on that banner have won the rhetorical war. Fischer takes on that banner, as she said on her campaign website “I am proud to be pro-life and have a 100% pro-life voting record in my 8 years in the Nebraska Legislature. I will continue to support a culture of life by supporting pro-life policies in U.S. Senate.” If you believe, as many people do who are pro-life, that life begins at conception then any bills regarding prenatal care or that have impacts on pregnant women should be considered for the mantle of pro-life policies. Even moreso, they should be considered for the idea of a “culture of life.”

In 2008, the Nebraska Unicameral passed a bill that would ban smoking from public spaces including restaurants and bars. Omaha and Lincoln, the two major cities in Nebraska, had already passed a smoking ban. Deb Fischer voted against the smoking ban being implemented statewide. Nebraska became the 16th state to enact such a ban. For those, who do not remember, when you used to go to restaurants you had to specify whether or not you wanted a table in the smoking or non-smoking sections. If you went to a bar, the fog of smoke prevented you from seeing far and the smell of cigarette smoke lingered in the air. Workers in restaurants and bars were most likely to feel the ill effects of secondhand smoke but all patrons to those places would be exposed to some degree of secondhand smoke.  Since the passage of the smoking ban, the number of smoke-free homes have increased from 77% in 2004 to 89% in 2012.  The percentage of Nebraskans who reported that smoking in the family vehicle increased from 76% in 2004 to 85% in 2012. The smoking ban changed norms for people of Nebraska where they no longer felt obligated to allow smoking in their car or home and adopted voluntary smoke free rules for their personal property.

Despite overwhelming scientific consensus, there is a bit of a generational gap of the dangers of secondhand smoke. This is something that I have come into contact with, with those in their mid-50’s who dismiss the health problems of secondhand smoke with a wave of their hand that people are upset about the smell of cigarettes while downplaying the significant health problems with secondhand and even thirdhand smoke.

According to one study, the authors found that women that were exposed to secondhand smoke while pregnant had a decrease in 153.1 grams in birth weight.  This may not seem significant but low birth weight (LBW) is associated with “fetal and neonatal mortality and morbidity, inhibited growth and cognitive development, and risk of chronic diseases in later life.” The authors of the study note that while the exposure is less in secondhand smoke than in active smoking the “potential for biologic action is expected to be similar.” The Surgeon General’s report celebrating 50 years of progress on cigarette action noted that nicotine

is a pharmacologically active agent that has acute toxicity and that readily enters the body and is distributed throughout. Beyond causing addiction, it activates multiple biologic pathways that are relevant to fetal growth and development, immune function, the cardiovascular system, the central nervous system, and carcinogenesis. Nicotine exposure during fetal development, a critical window for the brain, has lasting adverse consequences for brain development. Nicotine exposure during pregnancy also contributes to adverse reproductive outcomes, such as preterm birth and stillbirth.

The CDC notes that mothers who are exposed to secondhand smoke or babies exposed to secondhand smoke after birth are more likely to die of Sudden Infant Death Syndrome (SIDS) than are babies who are not exposed. The Surgeon General report claims that 100,000 babies have died of SIDS or complications from prematurity, low birth weight, or other conditions caused by parental smoking. In another study, researchers found that exposure to secondhand smoke increased a non-smoking pregnant woman’s chances of having a stillborn by 23% and increased the risk of delivering a baby with birth defects by 13%. 

More common is the dismissal that thirdhand smoke is just an irritation to smell but does not cause any health problems. Thirdhand smoke is the toxins from tobacco smoke that are on furniture, cars, clothing, and other surfaces. It’s essentially aged secondhand smoke. In the study, published in the American Journal of Psychology, the researchers at the Los Angeles Biomedical Research Institute at Harbor-UCLA Medical Center, found that prenatal exposure to thirdhand smoke “can have as serious or an even more negative impact on an infants’ lung development as postanatal or childhood exposure to smoke.” The exposure can lead to “prenatal disruption of lung development can lead to asthma and other respiratory ailments that can last a lifetime.”

Simply put, exposure to smoke, whether firsthand, secondhand, or thirdhand leads to harmful prenatal development and increases the likelihood of stillborn, low birth weight, SIDS, and long standing respiratory problems for children. The culture of life seems like an odd thing to hold onto when being unwilling to take positions to help protect children’s lives outside the scope of abortion.

Lifetime tenure

Fischer was able to defeat the one candidate who is likely to be her strongest challenger for however long she wants to stay in the U.S. Senate. The Nebraska Democratic Party does not have a very strong bench, especially for a statewide run. This does not seem like something will change in the immediate future. Of course, we all know how something like the 2012 Republican autopsy report becomes outdated. So I’m ambivalent about making about making concrete long term predictions. Fischer co-sponsored, not once, not twice, but three times a resolution calling for term limits in Congress. The resolution called for a maximum term limit of 2 terms in the U.S. Senate, all three times. S.J. Res. 2 introduced in 2013 by David Vitter among others, S.J. Res. 1 in 2015 introduced by Vitter, and S.J. Res. 2 introduced in 2017 by Ted Cruz.   In theory, this will be her last election in 2018. But there are weasel words in those bills. Section 3 states “no term beginning before the date of the ratification of this article shall be taken into account in determining eligibility for election or appointment under this article.” Thus exempting themselves from needing to take the resolution seriously going forward. At this point, we expect nothing more.

I do not want to spend the entire introduction to Senator Fischer as a discussion of our disagreements of policy because I want to cover that in tremendous detail in subsequent posts focusing on policy not just for Fischer but all of Nebraska’s candidates. The rest of this section will focus primarily on Senator Fischer’s opposition to Chuck Hagel as Secretary of Defense under Barack Obama and particularly a line that she wrote in her op-ed about leadership.

As I previously noted, Republican Chuck Hagel supported Democrat Bob Kerrey in the general election. 2013 was in the middle of a tectonic shift in the Republican Party where it shifted from a party willing to work with the Democratic Party to a party grounded in outright opposition. To many, Hagel supporting Kerrey in the general election was worse than what many Democrats could do. Some Republican groups and leaders held their nose about the Presidential nominee in Mitt Romney because they feared a second term of Barack Obama. After the election, they did not see a point to hold back any longer. To provide just one example, the Log Cabin Republicans endorsed Mitt Romney for President in 2012 (and later deleted their endorsement page) despite his support for the Defense of Marriage Act and don’t ask, don’t tell. He also signed the National Organization for Marriage’s pledge to support a federal marriage amendment enshrining the right to marry to be reserved for a man and a woman. They had previously endorsed George W. Bush in 2000 but not 2004 (due to Bush’s support for the same amendment Romney pledged to support) and endorsed John McCain in 2008. But when Secretary of Defense Chuck Hagel was nominated for Secretary of Defense, the Log Cabin Republicans took out ads opposing Hagel. One reason was because he joked that an ambassador was “openly, aggressively gay”. The other two reasons were because of his stance in favoring don’t ask, don’t tell and his support for the Defense of Marriage Act. Nevermind that Hagel wrote a letter expressly saying that he supported the repeal of don’t ask, don’t tell. The opposition to Hagel was intensely personal. Even if those opposing tried to dress it up in terms of policy disagreements. When Hagel endorsed a Democrat in the 2012 Senate election, he should have known that he was going to face a tough confirmation if he was nominated for anything.

Fischer wrote an op-ed for the Omaha World Herald about why she could not support Hagel for Secretary of Defense. In it, there is a lot of criticism for Hagel as Secretary of Defense. But what is most striking to me is something I agree with quite a bit, she writes, “I understand no one has all the answers or is correct 100 percent of the time. But as an elected official, I also believe leadership requires the humility to admit being wrong.” One of the areas where Fischer criticizes Hagel was his opposition to the Iraq surge. She wrote

Similarly, when pressed by Sen. John McCain about his opposition to the surge of troops in Iraq, which helped to turn around an unsuccessful war, Sen. Hagel refused to acknowledge his incorrect judgment.

A popular narrative around Iraq is that the 2007 Iraq surge was the force that led to a stabilizing effect in Iraq. Hagel opposed the Iraq surge in 2007. During confirmation hearings, Hagel noted how his experience in war informed his opinions about how to handle wars.

 “I saw [war] from the bottom. It directly formed me and goes to Sen. McCain’s question about the surge. I have one fundamental question that I asked myself in every vote I took, in every decision I made – was the policy worthy of the men and women we were sending into battle, and surely to their deaths?”

Hagel went on to concede that the surge helped in the objective of the Iraq War. But also noted that there were other factors at work. He argued that history should be the ultimate judge of the Iraq surge. John McCain retorted back, “I think history has already made a judgment on the surge, sir, and you are on the wrong side of it.” Doug Olivant, an Army planning officer in Baghdad, told NPR that the stabilization of Iraq was “more to do with deep political and social forces inside Iraq.” He concluded that Iraqi Sunni leaders decided to work with the Americans prior to the surge which helped but the real change came from inside Iraq. Alex Kingsbury wrote in the Boston Globe about themyth of the surge in 2014, noting that in 2008 only 4% of Iraqis said additional US forces were responsible for the decline in violence. A 2011 article in the Small Wars Journal found that the Sunni tribes turning against Al Qaeda and stand-down by militias had a greater effect on security than the surge. The grander strategy of political reconciliation as a result of the surge was an abject failure. Hagel struck a courageous stance with regards to opposing the surge. Over one thousand troops during the surge, as Hagel said in his confirmation hearings.

The surge was not a smashing success as Fischer likened to in her op-ed and certainly does not talk about Hagel’s certainly correct assessment of the situation while he was sitting for his confirmation hearing. Fischer, to my knowledge, has not indicated that she was mistaken or should not have spoken with such certainty about the success of the surge.

Roughly 2 years ago, Senator John McCain and Dianne Feinstein introduced the McCain-Feinstein amendment to the National Defense Authorization Act. The amendment would strengthen the prohibition on torture and ensure the United States does not engage in torture. The amendment would use the Army Field Manual the single standard for U.S. government interrogations.   In 2009, a special task force on interrogations which included the CIA concluded “the practices and techniques identified by the [Interrogation] Manual or currently used by law enforcement provide adequate and effective means of conducting interrogations.” In 2014, when a report about the CIA’s interrogation program was released showing that the CIA misled the effectiveness and extent of certain interrogation techniques, Fischer criticized it as partisan.

“We need to look at what information is brought forward when you use those techniques, and if it’s proved to be valuable, we have to have all options on the table. We need to protect citizens of this country.”

Protecting citizens of this country and the military personnel is exactly why so many people in the military and intelligence warned against the use of torture and the expansion of it. JPRA prepared memos for the Bush administration warning against the use of torture because the information may be unreliable. They wrote in one memo “the unintended consequence of a U.S. policy that provides for the torture of prisoners is that it could be used by our adversaries as justification for the torture of captured U.S. personnel.” Retired Lt. General Mark Hertling, after Donald Trump stated that torture works, simply said there’s no indication that torture works.  He went further saying “there are much better ways to get information through proper interrogation techniques.” Ex-CIA analyst Ray McGovern also wrote that torture does not provide reliable information. Ex-CIA chief David Petraeus also opposes torture saying that you’re more likely to get information from a detainee by becoming his best friend. Petraeus opposes the idea that information from torture led to the killing of Osama bin Laden. I could go on with a number of retired military and intelligence officials willing to talk about how torture does not produce reliable information and provides justification for the torture of American troops or soldiers.

Fischer joined 20 other Republicans in opposing the McCain-Feinstein Amendment on torture. Fischer has yet to say she was wrong for doing so.

What’s next

I have no ill feelings toward Fischer. I wish she was more willing to admit that she was wrong on a number of issues and willing to break with Republican orthodoxy. But I don’t think she will. She has not been arguing that she is an independent voice for Nebraska or claiming that she works in a bipartisan manner. The pretext is gone. She’ll probably run as a strong conservative. I have no illusions that she will be defeated but I would rather her own up to her policy shortcomings and provide leadership, as she defines it, which is to admit she was wrong. When she finds that humility, it will be greatly appreciated.

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The unicameral scorecard

One of the ways that we can keep our politicians accountable is to keep scrupulous notes on how they vote. Luckily, we live in the age of internet where such a thing is fairly easy to accomplish if you have the motivation and a strict sense of what is important to yourself as a voter. I like to keep track of the legislators in my community the best I can.

The problem is, if you are keeping track of such a thing, what you think is important may not be as important to another person trying to research the information. So while public scorecards are important, in my opinion, they may not be all together as helpful as those calculating the scorecards think. Beyond that, there is the inherent bias from those calculating the scorecard. For instance, when you see the scorecard that I put together, I have a bias in choosing what bills that I think are important and how I score those bills. It may not be of the most importance to you whether or not your state legislator supports E-Verify for all businesses in the state of Nebraska or you may think it’s very important and disagree with my grading. That’s fine. I’m hoping to be fairly transparent with what I am presenting to give you the best incomplete information out there.

A few notes. I provided a score of +3 if the legislator either sponsored, co-sponsored, voted in favor of legislation, or voted in favor of advancing the legislation for legislation that I think is favorable. If a legislator voted against the legislation or against advancing the legislation, the legislator received a score of -3.

If the legislation was unfavorable, I provided a score of -3 for sponsoring, co-sponsoring, voting in favor of advancing the legislation, or for voting in favor of the legislation.

I placed a premium of trying to override a governor’s veto. For legislation that I deemed favorable, if a legislator voted to override the veto, they received +5. They received -5 if they voted to sustain the veto.

For those who voted present or were excused from voting on legislation, they received a score of 0 regardless of how I feel about the legislation. But if they voted present on an override, they received a score of -2. They would receive this score, regardless of how I feel about the legislation.

I am going to try and write some more about a number of these bills at a later time but I thought I should provide this, first.

Scorecard can be found here


Hillary and civil liberties

As requested. Here we go.

Image result for hillary clinton

As with my post about Trump, this is focusing on specific Amendments in the Constitution notwithstanding problems of separation of powers, etc.


No fly, no buy

Compulsory gun buy back

Clinton on more surveillance of the internet


1st Amendment

Clinton, while a Senator wrote a bill to criminalize flag burning.  Under Texas v. Johnson, flag burning is a first amendment protected form of free speech.

Clinton’s plan to have more oversight of the internet, depending on how it is enforced could be a violation of the 1st Amendment.  If she is actively going after people based on discriminatory reasons, such as they posted in a Muslim group, it would be violation of the 1st Amendment.

As noted below, she has supported the PATRIOT Act in the past but now supports the USA Freedom Act. The bulk collection of metadata infringes on our 1st Amendment right of association.

2nd Amendment violations

No fly, no buy: No fly, no buy is terrible policy, as I’ve written before.  It would certainly be challenged on the grounds that it violates the 2nd and 5th Amendment.

Opposition to Heller: Clinton was leaked in a recording opposing the Supreme Court ruling in Heller saying that the Supreme Court was wrong on the 2nd Amendment.  And they may be incorrect about it.  Clinton may be objecting to the idea that owing a firearm is a constitutional right but she doesn’t say so explicitly.  In the leaked audio, she argues that she is going to make that case (that the Supreme Court was wrong) every chance I get.

I’m going to note here that I largely agree with the Heller ruling.  It was an extremely narrow ruling and actually makes the case that firearms can have narrow regulations.  There are aspects of Heller that a liberal Supreme Court would scale back, including defining a “dangerous and unusual weapon.”

Compulsory buybacks: Clinton made a point to muse about Australia’s compulsory gun buyback program.  Compulsory buy back program would certainly be challenged. Without Heller being overturned, I do not see how it would be considered constitutional.  She also talked about a voluntary program, too, which would be constitutional.

4th Amendment

PATRIOT Act: While in the Senate, Clinton voted for authorization of the PATRIOT Act.  Warrantless searches and warrentless wiretaps are a violation of the 4th Amendment. She has since rescinded this support and supported the USA Freedom Act.

5th Amendment violations

No fly, no buy: Again, this will be challenged on the claims that it violates due process and the no fly list, certainly does.

Drone strikes: Drone strikes on American citizens would be a violation of due process and also a violation of the 8th Amendment, Obama’s damning memo, notwithstanding.

Torture: Due process clause prohibits interrogation by torture. Clinton has merely rejected torture as it is not effective

8th Amendment violations

Torture: This obviously violates the prohibition on cruel and unusual punishment. John Yoo and the Bush Administration’s claim about enhanced interrogation techniques have been largely discredited and the McCain-Feinstein Amendment has prohibited US government agencies and officials from using interrogation methods not listed in the Army Field Manual.






Distorted reality part 3

Sorry for the delay, here is the next part in my series.  I am going to primarily focus on Donald Trump and the Constitution.  For the past 8 years, I have heard nothing but consistent attacks on Barack Obama for violating the Constitution, as well as consistent claims from conservatives that they are merely upholding the Constitution when they withhold their support for him.  I’m going to look at some (not all) of the times Donald Trump has advocated for violating the Amendments in our constitution.

Image result for barack obama painting constitution

Note: This does not even include other portions of the Constitution that Donald Trump has called on to violate throughout his campaign.

For reference:

The Muslim ban

Mass deportations including references to a “deportation force.”

Ending catch and release

On profiling Muslims

On shutting down mosques

On the surveillance of mosques

Trump on a Muslim database (I’m ambivalent on whether he called for a Muslim database)

Trump on torture

Libel laws


Donald Trump ISIS families

Donald Trump birthright citizenship

Donald Trump criminalizing abortions

Donald Trump guns and stop and frisk

Donald Trump supports North Carolina Voter ID law

No fly, no buy

Image result for donald trump


First Amendment violations

Muslim ban: The ban on Donald Trump’s website states the following:

Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.

As the American Civil Liberties Union notes in their report, “The Trump Memos”, a policy that excludes members of a particular religion would violate the Establishment Clause of the First Amendment.  This is based on the precedent in L:arson v. Valente.

It could potentially be a violation of the 1st Amendment based on the rights of religion, speech, and peaceful associations, as well.  It would be challenged almost immediately.

Profiling Muslims: Free Exercise and Establishment Clauses would likely be violated, as well as the freedom of expression .  The Supreme Court has previously ruled that the government would have to show a compelling interest otherwise it would be invalid.  The Supreme Court further wrote, “a law targeting religious beliefs as such is never permissible.”  The Establishment clause continues to prohibit the government from enacting a law or policy that favors one religion over another.  Further the government cannot pass laws to prohibit speech just because they disapprove of the ideas.

Shutting down mosques and surveillance of mosques: Both of these would violate the First Amendment under both the Free Exercise and Establishment Clauses.

Libel laws: There is no federal libel law.  They are administered by the state and are constrained by the First Amendment.  Libel laws are purposely constrained so that our political discourse is not hampered.  There has to be proof of actual malice.

NSA and PATRIOT Act: Storing bulk metadata of phone calls is a violation of the First Amendment as, the ACLU notes, “it vacuumed up sensitive information about Americans’ associational and expressive activities.”

Banning media outlets: Trump has repeatedly banned media outlets from covering his campaign.  Press bans would infringe on the right of a free press.

Second Amendment violations

Stop and frisk: When trying to defend the indefensibile policy of stop and frisk, Trump stated,”you know, [the police are] proactive and if they see a person possibly with a gun or they think may have a gun, they will see the person and they’ll look and they’ll take the gun away.”

That’s actual gun grabbing of individuals without any way of determining whether they legally have a gun.  States pass laws including conceal-carry and open carry.  Grabbing people’s guns as part of a stop and frisk policy seems problematic.

No fly, no buy: I’ve written about this before but “no fly, no buy” is both a violation of the 2nd and 5th Amendments.

Third Amendment violations:

Mass deportations: This is the only speculative violation on my list.  There’s not a lot of case law on the Third Amendment.  But in Engblom v. Carey, the Second Circuit Court of Appeals ruled that a member of the National Guard is considered a soldier so housing the National Guard without consent would be a violation of the Third Amendment.  In order to effectively deport the 11 million undocumented immigrants out of the United States, the federal government would have to exponentially increase the number of immigration service agents or they could help rely on the National Guard to enforce the deportations.  If the National Guard take up residence in an immigrant community without consent, this would be a blatant violation of the Third Amendment.

Fourth Amendment violations

Mass deportations: Trump has repeatedly called for mass deportations of the 11 million undocumented immigrants that are currently in the United States.  Of course, undocumented immigrants are hard to distinguish between legal immigrants.  Now, we wait until they come into contact with the criminal justice system.  To weed out undocumented immigrants, we would need a massive increase in the number of border patrol agents and immigration service agents.  This would also likely lead to an increase in suspicionless interrogations and arrests, racially discriminatory traffic stops, warrantless searches of workplaces and homes, and warrantless home raids by law enforcement officials.

This is would almost certainly violate the 4th Amendment.

We’re not even getting into the possibility of warrantless wiretaps.

Profiling Muslims: Warrantless profiling, suspicionless interrogation, and warrantless wiretaps would likely violate the 4th Amendment, as well.

NSA and the PATRIOT Act: Warrantless recording of phone calls and e-mails is a violation of the 4th Amendment.

Killing ISIS family members: In 4th Amendment cases, including Tennessee v. Garner, the Supreme Court ruled:

“the use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.”

Stop and frisk: Warrantless or suspicionless stop and frisk would certainly be a violation of the 4th Amendment as it is racially applied in most jurisdictions.

Fifth Amendment violations

Muslim ban: Equal protection requirements apply to the federal government under the Fifth Amendment Due Process Clause. Denying citizens access to the country based on their religion would fail under the Due Process clause, as well.

Mass deportations:  Mass deportations cannot happen as soon as Trump becomes, gulp, President.  The government would still need to prove that the immigrant is not lawfully in the country.  Otherwise it would be a violation of due process.

“Ending catch and release”: This would violate due process principles spelled out in the 5th Amendment.  It has to follow certain procedural guidelines based on the ruling in Zadvydas v. Davis to make sure that it serves a legitimate purpose.

Muslim database: A requirement that would make every Muslim register with the government because of their religious beliefs would be a violation of the Privacy Act of 1974.  If they lost any rights or liberties as a result of this database, it would fail on Due Process grounds.

Torture: The Due Process clause bars interrogation by torture.

Killing ISIS family members: Drone strikes on US citizens have been argued against as an expressed violation of the 5th Amendment’s due process clause.  The Obama drone memo arguing against this, was an abomination.

Stop and frisk: Taking people’s guns away without any checks, probable cause, or proving allegations this would be a violation of due process.

No fly, no buy: No fly, no buy is a violation of the 5th Amendment.

Sixth Amendment violations

Mass deportations: The Supreme Court applied Sixth Amendment protections to immigrants in 2010 with the case of Padilla v. Kentucky.  Immigrants facing interrogations from the “deportation force” would likely require that immigrants have the right to an attorney present.  Without explicitly qualifying this, the deportation force would likely face violations of the Sixth Amendment. A fair and speedy trial with an immigration court already backlogged would likely not occur, as well.

Eighth Amendment violations

“Ending catch and release”: The American Civil Liberties Union has long argued that current immigration detention centers violate the 8th Amendment standards for “cruel and unusual punishment.”  Detaining immigrants until they are deported are likely going to deteriorate conditions further.

Torture: This obviously violates the prohibition on cruel and unusual punishment.  John Yoo and the Bush Administration’s claim about enhanced interrogation techniques have been largely discredited and the McCain-Feinstein Amendment has prohibited US government agencies and officials from using interrogation methods not listed in the Army Field Manual.

Killing ISIS family members: This would almost certainly constitute a cruel and unusual punishment for merely being a family member of someone who joined ISIS.

Ninth amendment Violations

Personal privacy: The Ninth Amendment was used in part of the Supreme Court’s ruling in Roe v. Wade which legalized abortion and struck down statutes of law that criminalized abortions.  The Ninth Amendment was also used in Lawrence v. Texas and Obergefell v. Hodges.  The Supreme court found that we do have a right to privacy from government intrusion.  Criminalizing abortions (even though he has tried to walk it back) would likely be a violation of the Ninth Amendment.

Tenth Amendment violations

Stop and frisk: If Trump did actually try to set policy for all police departments in the country by instituting stop-and-frisk, this would be a major violation of the 10th Amendment. If he set his gun grabbing strategy like above, it would violate the state’s ability to pass gun legislation.

There are more violations of the 10th Amendment but they usually fall on the grounds of Trump trying to usurp state’s rights and powers.

Fourteenth Amendment violations:

Muslim ban: In Afroyim v. Rusk, the Supreme Court opined that “the Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional forcible destruction of his citizenship, whatever his creed, color, or race.”  Equal protection requirements apply to the federal government under the 5th Amendment’s Due Process clause.

Birthright citizenship: I’ll have something longer on this belief, soon enough.  Possibly a new project I’m working on.  But Trump ending birthright citizenship is a blatant violation of the Fourteenth Amendment.

Fifteenth Amendment violations

Voter ID: Trump has supported the North Carolina voter ID law.  The law was struck down as unconstitutional as being passed with discriminatory intent.  It was passed, in part, to ensure that minority voters could not show up to vote.  Hence, why I believe voter ID is unconstitutional.

Nineteenth Amendment violations

Voter ID: Demographics that vote for Democrats were explicitly targeted with voter ID laws.  This includes women.

Twenty fourth Amendment Violations

Voter ID: While voter ID is not considered a poll tax by everyone, voter ID typically requires a fee to be able to obtain valid ID.  Without paying this fee and without the ID, they will not be able to vote.  This is an abstract version of a poll tax.

Twenty sixth Amendment violation

Voter ID: One of the ways that the North Carolina voter ID law targeted voters was to prevent potential voters from preregistering so that they would be able to vote after they had turned 18 and were eligible to vote. A support for North Carolina’s onerous voter ID bill is support for making it more difficult to vote.




Elections to watch: AZ-02

on Barber (D), after being injured in an assassination attempt on Gabrielle Giffords, was elected in June of 2012 to replace Giffords in Congress.  Barber was re-elected in November of 2012 by narrowly defeating Martha McSally by 2454 votes.  The final percentage of the vote was 50.41% – 49.57%.  Barber slightly outperformed President Barack Obama in the district.  President Obama lost the congressional district in the presidential election 49.9-48.4.  Due to the closeness of this race, the Congressional election in 2014 was hotly contested and ended up being the 6th most expensive House race in 2014.  In a rematch of the 2012 Congressional election, Martha McSally defeated Barber by less than 200 votes in 2014.  Unlike in many other districts and mid-term elections, the difference in the election was not merely because of a lack of turnout with the Democratic Party.  As we see from the below table, both candidates lost close to the same amount of voters from 2012 to 2014.

Candidate 2012 vote totals 2014 vote totals
Ron Barber 147,338 109,547
Martha McSally 144,884 109,714
Other 57 104
Total votes 292,279 219,365

Luckily for the voters of the Arizona 2nd Congressional District, Barber is not running for another chance of going against Rep. McSally.  The challenger for McSally in this cycle is most likely going to be State Representative Victoria Steele.  Steele has received the endorsement of 16 of her fellow state legislators as well as Congressman Raul Grijalva.  Steele still has to win the Democratic primary at the end of August against former state Representative Matt Heinz.

While serving in the Arizona House of Representatives, Steele has sponsored a number of progressive bills that would get the attention of a number of progressives, not only in Congress but, nationwide.   HB2546 was introduced on 05/05/2016 and has 17 sponsors.  The bill would increase the minimum wage for fast food employees.  The bill would increase the minimum wage for fast food employees beginning January 1, 2017 to $9/hour then increase it by$1/hour per year for year afterwards.  Additionally, there is a call for a minimum wage increase tied to the consumer price index which would be a cost of living increase.  If the cost of living increase was higher than the call for the minimum wage increase, then the fast food employees would receive the cost of living increase as their minimum wage.

She has signed onto other progressive causes and legislation, as well.  HB2177 was also introduced and sponsored by 21 members of the Arizona House of Representatives.  This bill calls for paid sick and safe time and would be accrued at the beginning of the employment.  SB1327 was introduced in April or 2015.  This bill would prohibit discrimination based on sexual orientation or sexual identity for employment.  Essentially, this is a bill that has been called on for years which is the Employment Non-discrimination Act.  While there is almost certainly more progressive legislation that Steele has been a sponsor of, the last example I’m going to bring up which is HB2327 introduced in January of 2016.  This bill would allow for needy families to be able to receive cash assistance for a total of twenty-four months compared to a total of twelve months, previously.

Representative McSally has not been a conservative firebrand while she has been serving in Congress.  According to GovTrack’s analysis, she is closer to the middle compared to being on the conservative fringes.  Her own focus while in Congress has been to focus on immigration and veterans.  Her own bills include H.R. 2551 and H.R. 2835.  H.R. 2551 would relax standards for educational assistance for pre-apprenticeship programs for veterans.  This would allow veterans to receive additional educational assistance while they are trying to get back into normal civilian life.  H.R. 2835 would direct the Department of Homeland Security (DHS) to increase their efforts to recruit members of the Armed Forces to be a Customs and Border Protection officer.  It would also include outreach from DHS to the Armed Forces.   The bill would also minimize the amount of time that a member of the Armed Forces would need to go through to get security clearance or background checks.  Both of these bills are worthy end goals.  If I had more time and space I would go over more of Rep. McSally’s bills that she has introduced and perhaps I will at a later date.

We will do a deeper dive into the policies and bills that Representative McSally and others have co-sponsored and voted on.  Initial polling of the state of Arizona showed that Donald Trump may have issues keeping Arizona in the Republican category and if that continues at all, this district may have more significance.  As we get closer to November, this election will be one worth watching and will be worthwhile for us to look at deeper so we can separate the candidates based on actual policies compared to what political party they happened to be registered with.

Elections to watch: AZ-01

Representative Ann Kirkpatrick (D) of Arizona’s 1st Congressional District decided not to seek re-election for her Congressional seat and has decided instead to challenge John McCain for his Senate seat.  She provides a good challenge to McCain in a general election.  This was a competitive election in 2012 and 2014 and without the incumbent, could be a viable pickup for the Republican Party in 2016.

In 2012, Kirkpatrick won 48.80% of the vote compared to Jonathan Paton’s 45.15% of the vote.  This was a difference of 9,180 votes.  Kirkpatrick won re-election in 2014 with 52.61% of the vote compared to Republican Andy Tobin’s 47.39% of the vote.  She won by 9,668 votes in 2014.  There were 66,481 less votes cast in 2014 for this district compared to 2012.  Kirkpatrick got 79% of her vote share from 2012 in 2014 compared to the Republican candidate only getting 77% of their vote share.

Democratic candidates

Kirkpatrick was a pretty strong candidate and she received her incumbent bonus which allowed her to keep her seat.  The challengers who are vying to be the Democratic nominee are Tom O’Halleran, Miguel Olivas, and James Maloney.  The primary election will be held on August 30, 2016.

James Maloney – I don’t know a lot about Maloney.  His campaign website is trying to strike a populist tone and ride the coattails of Bernie Sanders’s presidential run.  A lot of his themes on his website are present in Sanders’s campaign, including rebuilding infrastructure and free (community) college.  Unfortunately, for Mr. Maloney, Bernie Sanders lost the Democratic primary in Arizona’s 1st Congressional district 35,445 votes to 26,267 votes (55-41).  The 2012 Congressional primary for the Democratic Party had 53,078 votes cast (about 10,000 less than the 2016 Presidential primary).  I would assume that as Sanders’s support goes in this district as would Maloney’s.  For now, I am low on Maloney’s chance to become the nominee.

Tom O’Halleran – He is the heavy favorite to become the nominee.  He is a former Republican State Senator for the legislative district in this Congressional district.  He changed his party affiliation prior to 2014 because of perceived failures of the Republican Party to fix a number of issues within Arizona despite having the majority.  Mr. O’Halleran is the “establishment” candidate receiving numerous endorsements and is a part of the Democratic Congressional Campaign Committee’s Emerging Races.    If the establishment fervor wears off by the time of the primary election, O’Halleran should become the nominee.

Miguel Olivas – He ran in 2012 for the Democratic nomination to run for Congress.  He wasn’t successful.  In 2014, he ran to represent the 3rd district (Raul Grijalva)’s district as a Libertarian but withdrew prior to the primary .  Olivas is a small business owner and was previously a staff member in Congress.  I don’t think he will be too successful in securing the nomination

Republican candidates

The National Republican Congressional Committee (NRCC) thinks this is an opportunity for a pickup in the House to help maintain their majority.  It’s a district that should, at least, be competitive if they are able to find the right candidate.  There are five candidates with a viable shot of winning, in my opinion.

Wendy Rogers – Rogers ran as a candidate in Arizona’s 9th Congressional District in 2012 and 2014.  She lost in the primary in 2012 and in the general election in 2014.  In the 2012 Republican primary, she lost to Vernon Parker 22.5%-21%.  She lost to Kyrsten Sinema in the general election in 2014 54.7%-41.9% after she beat previous Arizona State quarterback Andrew Walter 59.4% -40.6% in the primary.  She is a business owner and previously served in the United States Air Force.  In 2014, she focused her general election campaign on running as an outsider.  She focused quite a bit on immigration.  This is one of the bigger issues facing Arizona’s 1st Congressional District, according to voters.  I think she will continue to focus on this issue.  Based on first quarter fundraising, she has raised over $100,000 in the first quarter.  She also endorsed Donald Trump very quickly so may get some added support from Trump as we approach the primary election.

Paul Babeu – Babeu is a sheriff from Pinal County.  He has been an extreme conservative on immigration and especially harsh on illegal immigration.  That being said, Babeu endured a scandal when he initially ran for Congress in 2012.  He had to admit that he was gay as an ex-boyfriend claimed Babeu threatened deportation unless the ex-boyfriend would keep quiet about Babeu’s sexuality.  He was re-elected as a sheriff despite this scandal.  He frequently attacked Eric Holder and the Obama administration over immigration.  His campaign will try to focus on immigration and deregulations, especially with the EPA.  Based on some polling in the district and his fundraising totals , Babeu is to be considered the favorite for the nomination.  It’s still early.  He has raised the second most amount of money in the first quarter with $157k raised.

David Gowan – Despite Babeu’s battles with the federal government over immigration, Gowan has received the endorsement of immigration’s favorite sheriff, Sheriff Joe Arpaio.  Gowan is the former speaker of the Arizona House of Representatives so he does have a considerable amount of legislative experience.  Gowan has the only high profile endorsement in the district, so far, on the Republican side.  He has run in the legislative district with the Congressional district since 2008, so he should have some experience in campaigning in the area.  Gowan has gotten quite a bit of financial support of the wealthy Republican community in the district.  He has received the backing of Johnson Utilities owner George Johnson; Tucson car deal Jim Click; and Arizona Cardinals President Michael Bidwell.  I would say that, as of right now, he is in a close second place.

Ken Bennett- the former Arizona Secretary of State and Republican gubernatorial candidate is now running for Congress against a crowded field.  On the one hand, he and Gary Kiehne have been named the NRCC Young Guns and are seen as the best shot of winning the general.  On the other hand, this is probably the worst election cycle to be an establishment favorite.  Bennett only raised $80k in the first quarter.  Most of the conservative donors seem to be focusing on giving to Gowan.  While Bennett should be the favorite on paper, his fundraising totals is not matching that opinion.

Gary Kiehne – Kiehne, a rancher in Arizona, came in second place in the Republican primary in 2014 losing only by 400 votes to former Arizona speaker of the House Andy Tobin to be Kirkpatrick’s opponent.  He is a wealthy rancher who has loaned his campaign $500,000 so far.  He was named as one of the Young Guns by the NRCC.  This seems like a weird nickname to give considering Kiehne’s comments in the 2014 campaign where he made a point saying that 99% of all mass shooters are Democrats.  In a year where wealthy outspoken people are doing well in the Republican primary, Kiehne should do fairly well at the end of August.