The Alligator

Last year was a difficult year for advocates in the HIV/AIDS community. Reauthorization of the CARE Act, which was supposed to have been completed by September 2005 ended up being bumped to the second session of the 109th Congress and a complex and frustrating bill passed at 2 AM during the lame duck session with no official report language attached.   As the funding of “last resort”, CARE funds are used to provide treatment and services for thousands who would otherwise fall through the cracks.

It was an “interesting” process and one that caused a very arduous implementation process for many grantees. Some of the difficulties are just being realized now- in mid 2007.

The bill was tightly controlled by the “Bi Bi Committee” as it became to be known but was officially – the “Bipartisan Bicameral Committee”. More specifically the work was done by the staffers from both the Republican chairs of the and Democratic ranking members of the committees of jurisdiction- the House Energy and Commerce Committee and the Senate Health Education Labor and Pensions (HELP) Committee. The key players ended up being staff from Senator Kennedy’s (D-MA) and Senator Enzi’s (R-WY) offices.

The bill that was being shopped around in 2005 and early 2006 was dreadful and the community was rightfully more interested in stalling it because of some of the more draconian aspects to it. All along of course the HIV/AIDS community was worried about “medicalization” of the bill and ultimately that happened anyway – at least for Titles I and II (now Parts A and B) through the provision that 75% of grants be applied towards “core medical services”. Of course many folks like me in the community argue that medical care is nothing without the support services needed to keep people in care. One advocate- Pat Bass, the former Chair of the CAEAR Coalition- has said that medical care doesn’t come from a vending machine- it is more complex.

But towards the end of the 109th Congress it was clear that there was pressure to pass something and the debate became heated and various items took shape. Many of the community’s concerns were addressed by ambiguous language – so it would be open to interpretation and would also be dealt with in accompanying report language but still the community was not happy with the piece of legisaltion.  This was clear when at one of the final meetings where the community was invited to participate.  Frank Oldham, the Executive Director of the National Association of People with AIDS (NAPWA) read a statement that essentially said that NAPWA would not be able to support the bill.  Other advocates in the room stood up in support and Congressional staff were shocked.  But they were commmitted to passing something by the end of 2006 and the community continued it dialogue with Congress to ensure that our voice remained part of the mix although we would rather have waited until 2007 to do reauthorization at that point.

There were two big issues that consumed the community.

Instead of AIDS case reporting the push was to use HIV data- a good idea but a there were some implementation problems that were forseen at the outset.   The issue that arose was how to deal with using HIV data for formula grants when not all states had data through “mature” names reporting systems. States like California had been of the opinion that HIV reporting was a disincentive to testing and had built a non-names based reporting system due to that concern others, like Georgia had not collected HIV data for reasons similar to why others had gone “non-names”.   However the Health Resources Service Administration (HRSA) gets its data for numbers from the Centers For Disease Control (CDC) where all cases in the national are reported (NB: in names reporting states, cases are reported at the state level by name- but they are sent as codex reports to the CDC) and the CDC decided (seemingly capriciously and witout much notice) only to accept data from names reporting states as valid data. California and other non-names states had just begun to develop names reporting systems recently and would not have mature data for a number of years and their HIV data would not receive certification from the CDC.

A huge problem erupted. If you disallowed states like California to use its data- how would that be fair- since so many cases were in some of these states. It would be absurd to not find a way to be more equitable. A solution was proposed that would allow states like California to use its AIDS cases and add HIV cases based on as a standard ratio of HIV cases to the number of AIDS cases.

This posed a problem for New York in particular which has a mature names reporting system and also had a very different ratio of HIV to AIDS than was being proposed for the formula and since it had certified data it would be required to use the actual data rather than this “ratio” formula.  New Yorkers felt that the proposal was punitive to their use of actual data and benefited those that relied on the ratio and did not “real” data. This argument took a great deal of time and energy and ultimately a deal was struck that was “acceptable” to all parties that included a “de-duplication penalty for non-names data, a hold harmless on the amount a jurisdiction could loose in its formula and a cap on what it could gain but no one was jumping up and down with joy.

Another issue that obsessed national HIV/AIDS advocated was the definition of “medical case management” that was listed in the official list of “core services” eligible for funding with 75% of a CARE grant. The definition of “medical case management” varies from state to state, but usually means case management provided by an RN or other health educated social worker.

The vast amount of case management for people with HIV/AIDS is provided within a community based model and not a medically based model. While the goal for community based case management is positive health outcomes and ensuring folks have the support they need to ensure regular medical care, it is not usually provided by a medical professional. Medical case management, through this definition, is needed only by clients with the most complex needs and is exceedingly expensive. A good chunk of money is spent of community based case management and if it was to be relegated to the 25% support service allocation of a grant; it could cause upheaval in the system.

I also believe that many AIDS service organizations see case management funding as their organization’s life’s blood and they felt threatened. Any messing with case management could result in the demise of organizations and put a system of care in a very difficult position. Republicans were clear- they wanted medical case management. Ultimately, Senator Kennedy’s staff added the words “including treatment adherence services” to the phrase “medical case management” and that, they believed, allowed for a broader interpretation. As it turns out- they were correct. When HRSA released its service category definitions last week they broadly defined “medical case management and treatment adherence services” to include community based models of case management.  It seems that this was one of the only times in the legislation that ambiguous language actually worked for the community’s benefit.

Other issues took focus as well but what resulted was a piece of legislation of extraordinary complexity with a lot issues that have made it difficult for grantees to manage the process of implementation.

One problem that has developed has been how the grant monies have been awarded. Previous to the new bill, a grantee would get its formula, supplemental and Minority AIDS Initiative (MAI) funding in one chunk on March 1. This allowed for jurisdictions to plan for the next 12 months. This year, the grant is awarded in three parts- the formula in March, the Supplemental in May and the MAI in August making it neigh impossible for jurisdictions to appropriately plan. For smaller jurisdictions it has caused some very severe problems in continuity of services. Smaller jurisdictions often do not have the resources or capability to keep services running without the guarantee of funds for the feds and they are severely compromised by this piecemeal delivery of funding.

Another issue that has arisen is the list of fundable support services. Most notably- residential substance abuse services and complementary therapies are no longer allowable CARE funded services. Substance abuse is a very huge co-factor in HIV/AIDS and disallowing this category of service for funding is, quite frankly, obscene. Why did this list suddenly not include some very important services? It isn’t clear- but some believe that it was because the legislation listed support services to be funded and said “services including” and did not say “services including but not limited to”. We cannot be quite sure if this was the problem, but it might well be. It is clear that this new list was not “Congressional intent” – or at least the intent of Democratic staffers.

Another problem was what was considered to be the base in calculating a formula grant. The legislation refers to an “adjusted 2006 award” to calculate the base. The actual language states:

“For fiscal year 2007, an amount equal to 95 percent of the amount of the grant that would have been made pursuant to paragraph (3) and this paragraph for fiscal year 2006 (as such paragraphs were in effect for such fiscal year) if paragraph (2) (as so in effect) had been applied by substituting “662/3 percent” for “50 percent.”

This very complex language led HRSA to apply the worst possible funding scenario to San Francisco and, according to Democratic staffers working on the legislation, it was not Congressional intent. However a researcher, Wayne T. Steward, PhD, MPH at the University of California San Francisco predicted San Francisco’s formula award to the penny, so it seems likely that “Congressional intent” did not matter and that this language could be narrowly interpreted, which is how HRSA proceeded.

The community relied on “Congressional intent” and clear direction to be provided through report language and unfortunately there was never any official report language approved by both chambers of Congress  attached to the bill.  I think we have learned a lesson here. It is clear that Democrat Congressional staff did their best, but without real report language it has been up to the Bush administration’s department of Health and Human Services (which includes HRSA) to have the final say about interpretation and in many ways- “Congressional intent” is moot.

Another issue that has arisen is the lack of transparency in deciding “Supplemental Awards” – specifically for Part A (aka Title I jurisdictions). A provision of the final version of the legislation indicated that losses in the formula grant would be a high consideration factor in deciding a supplemental award amount. It is clear that this was not the case for the San Francisco Eligible Metropolitan Area (EMA) which took an overall 34% cut ($9 million). From the raw numbers it seems that the loss in the formula grant were of no consideration whatsoever in the stunningly low supplemental allocation.  If a competitive grant process is to continue in a new version of this bill after it sunsets in 2009, it is imperative that there be a more transparent process. One might wonder if there were any politics at play when the city represented by the Democratic Speaker of the House has such a drastic cut in its funding.

Another area of concern was the waiver on the 75% core medical services and 25% support services provision.  The waiver was supposed to be an “out” for folks who felt that the support services were vital to fund and that many of the core medical services were being provided.  These are areas that usually have good state Medicaid programs so CARE funds are needed to fill the gaps more than to provide direct medical care.  Initially HRSA was not going to allow for a waiver process in 2007 since they hadn’t been able to develop a ”rigorous” process for a waiver application in time.  But members of Congress complained and a suit was filed by the Nassau / Suffolk NY EMA so HRSA relented and allowed broad ability for waivers in the current fiscal year. However it is unclear what sorts of requirements will have to be fulfilled to apply for a waiver in the future. On a recent visit to the Hill where I and other advocates met with Congressional staff- we were asked repeatedly why more jurisdictions had not applied for the waiver (I believe only 3 Part A EMAs/TGAs applied). Most advocates and Health Departments think the waiver is a trap. If you state in a waiver application that many needs are being met and then turn around and make the case for a supplemental grant which is based on need- there is a Catch 22 at play.

The Ryan White Treatment Modernization Act of 2006 previously known as The CARE Act has been medicalized, convoluted and made extremely complex causing difficulties for Part A and Part B jurisdictions in implementing the provisions of the legislation. As the community begins to think about what is beyond the 2009 sunset of this bill, we need to have very serious conversations about how we think creatively and in ways that are not necessarily within the current paradigm or structure to address the realties of the epidemic.

If we do not initiate creative change that will meet the needs of our community, the process will be taken away from the community and changes will be made without our input or concerns being a priority. Remember Welfare Reform? By not paying attention to it and re-tooling it, finally the issue was taken away from welfare advocates and their voices were minimal – relegated to grumbling from those that supported an out of date bureaucracy. We cannot afford to let that happen to HIV/AIDS.

In my piece “Democratic Disappointment” I made the point that I was disappointed in House Democrats rather sparse ethics reform and about their cowardice in rolling over and funding the war.  I am still annoyed about the funding for the war and want to hold them accountable. But there was a change in the Ethics Reform package that made it a better bill.  I pointed out two parts of the Ethics Reform bill that I felt were important that were not going to be considered- exposure on bundling and the revolving door that allows lawmakers to quickly become lobbyists. Well that changed in the final version of the bill that the House passed. The behind the scene wrangling by the more business friendly members of the Democratic Caucus was ultimately unsuccessful and then finally the bill passed with a provision for exposing bundling. Many members of the House begrudgingly jumped on board and the House Ethics Reform bill ultimately passed by a vote of 396 to 22. Kudos to Speaker Pelosi!

The measure will bring into public view the role that registered lobbyists play in soliciting and collecting contributions for political campaigns, exposing for the first time one of the most effective ways that influence-seekers ingratiate themselves with lawmakers and presidents.

The measure goes to the heart of how Washington does business by uncovering a hidden practice that sprang up as an unintended consequence of restrictions imposed by campaign finance laws. Because those laws cap individual contributions - now at $2,300 per campaign - candidates have been turning to well-connected lobbyists to bundle stacks of checks to make up the millions they need to run their campaigns.

Washington lobbyists have the greatest incentive to shoulder such fund-raising burdens, often in the hope of gaining access to the lawmaker in return. But previous election rules required campaigns to disclose only their individual contributors, not the intermediaries who may have bundled them. The proposed new rule could expose the heavy reliance of many in Congress on Washington lobbyists to raise money for their campaigns.

But the measure would only partly illuminate the bundling custom. Only those who spend at least 20 percent of their time on lobbying activities and hold at least two meetings with government officials over six months are required to register as lobbyists, thus many of the most influential bundlers will not be affected by the new rule.

My confidence is restored!

No I am not talking about the philosophical treatise by Christian existentialist Søren Kierkegaard; I am talking about President George W. Bush’s continued strategy to sell the Iraq war as a vital component of our national security and our need to combat terrrorism.

AMNESTY International yesterday launched a scathing attack on the United States, accusing it of trampling on human rights, and using the world as “a giant battlefield” in its “war on terror”. The human rights group charged that the war in Iraq and the politics of fear being spread by the Bush administration around the globe were fuelling deep international divisions. Of course the report did not seem to phase Mr. Bush and in fact he used his usual arsenal of fear mongering and actually stepped it up a notch in a speech yesterday and a press conference today.

Yesterday President Bush wasn’t just talking to the cadets at the graduation at the U.S. Coast Guard Academy; he was shamelessly manipulating the public in an attempt to evoke fear and trembling in the American people who no longer believe his neo-conservative based pack of lies about why we are in Iraq.

Although he didn’t acknowledge those wielding signs and disapproval just outside the gates, when the president went on about al-Qaeda linking the group repeatedly with the war in Iraq - he seemed to be addressing the growing number of people in the country who no longer support his fight. He wants the American people to retain their post-9/11 worry about terrorism.

President Bush wants the disenchanted American people to believe that Iraq is the potential stage for international terrorists. He wants them to support “fighting them across the world so we do not have to fight them at home.”

“In the minds of al-Qaeda leaders, 9/11 was just a down payment on violence yet to come,” Mr. Bush stated during the commencement speech. “It is tempting to believe that the calm here at home after 9/11 means that the danger to our country has passed,” he said continuing during his “scare” diatribe.

Much of the intelligence information Mr. Bush cited in his speech described terrorism plots already revealed. But he cherry picked and declassified information to flesh out details and highlight U.S. successes in foiling planned attacks orchestrated by Osama bin Laden.

The assertion that Osama bin Laden is thought to be communicating with insurgents in Iraq is not new. But President Bush sought to infuse it with details. He said intelligence officials believed bin Laden had asked another top terror operative, Hamza Rabia, to help Abu Musab al-Zarqawi develop his terrorist cell by providing him with a briefing about Al Qaeda’s “external operations,” including information on attacks planned on American soil. Mr. Bush said another senior Qaeda leader, Abu Faraj al-Libi, at one point suggested that Mr. bin Laden send Mr. Rabia himself to Iraq, with the idea that “Al Qaeda might one day prepare the majority of its external operations from Iraq.”

Mr. Bush has long contended that withdrawing from Iraq would create a vacuum that would let Al Qaeda flourish, and he reiterated that argument on Wednesday, saying, “We are at a pivotal moment in this battle.” He painted a picture of a deepening terrorist threat even as he said Al Qaeda had been repeatedly thwarted by the United States and its allies. In actuality- most of the thwarted efforts against terrorism have been accomplished by out allies.

As I watched the speech I was revolted by the blatant use of the politics of fear. The line that shocked me was “Here in America, we are living in the eye of a storm,” he said. “All around us, dangerous winds are swirling and these winds could reach our shores at any moment.”  What a cynical manipulative ploy to grasp at a last hope to revive public support of his “folly” in Iraq- a “folly” that has made us more vulnerable and less safe. I use the word folly- but it is really a disaster- an unmitigated disaster. Mr. Bush is, to use his own administration’s words, in his “last throes”.

If there are any dangerous winds swirling, they are of Mr. Bush’s making. Thomas Sanderson, a terrorism specialist at the nonpartisan Center for Strategic and International Studies, called Mr. Bush’s argument “completely ridiculous,” and said Iraq would not have become a training ground for Al Qaeda had the United States not invaded. “We created the biggest terrorism training ground known, which is Iraq,” he said.

In “The Assault on Reason” by Former Vice President Al Gore seems to offer an elegant critique and direct indictment of Mr. Bush’s presidency. His statements that hat the president ignored “clear warnings” about the terrorist threat before 9/11 and that it has made Americans less safe by “stirring up a hornets’ nest in Iraq,” while using “the language and politics of fear” to try to “drive the public agenda without regard to the evidence, the facts or the public interest” about sums it up.

Mr. Gore continues his well documented critique, according to Michiko Kakutani’s “New York Times” review of the book by stating that the administration’s pursuit of unilateralism abroad, has isolated the United States in an ever more dangerous world.

One would think that Mr. Bush would have been sated with his need to stir up the dust of fear in yesterday’s speech but no- he continued it today in his Rose Garden Press conference.

At his press conference, Mr Bush himself yielded not one inch of ground to his critics - even when a reporter directly challenged his credibility as commander-in-chief in a four-year war that has taken the lives of more than 3,400 US servicemen, and tens - perhaps hundreds - of thousands of Iraqi civilians. Instead he reiterated his familiar arguments: that Iraq was better off without Saddam; that America must stay on the offensive; and that it was better to take on al-Qaeda in Iraq than on US soil.

“These people attacked us before we went into Iraq,” said Mr Bush. A US withdrawal would merely embolden al-Queda in its efforts to restore the caliphate, “if they could say they drove great, soft America out of the region”.

Mr. Bush knows there is no connection between 9/11 and Iraq- he has admitted it on occasion. But it doesn’t stop him from hinting at a connection in a sleazy and cynical ploy that is a propaganda trick. He doesn’t directly link it- because he will be called a liar, but in infers it so it sinks into the consciousness of the American people.

Maybe this president mangles the English language- but he is a master in the use of the language of fear and is a first rate propagandist.

I was hopeful when the Democrats took control of Congress. I was thrilled when my Congressional Representative became Speaker of the House. I felt that the tide was about to change. I really thought that things would change. Sadly that has not been the case on two key issues- Iraq and Ethics Reform and I am a disappointed.

I realize that governing is compromise or nothing gets done and maybe, just maybe- if the Democrats had a veto proof majority in the House and the Senate- they would be able to pass legislation and funding that was in keeping with their word. But I believe that the Democratic Leadership rolled over too quickly on these two issues.

Let’s take Ethics Reform first. My biggest disappointment here is that some members of the Democratic Caucus did not want to support some of the vigorous components of a bill that would have lived up to Speaker Pelosi’s pledge last fall that a new Democratic majority would “drain the swamp” in Congress by breaking the link between lawmakers and lobbyists. She tried to pass lobbying reforms but she faced strong resistance from a surprising corner — her veteran Democratic colleagues.

Within the Democratic caucus several longtime lawmakers objected to the effort to force lobbyists to disclose when they “bundled” campaign checks, which they argued would make it harder to raise money. Bundling gives lobbyists a good amount of their clout. Members also complained about the “revolving door” provision requiring members to wait two years after leaving office before they can lobby Congress.

So the Democrats hammered out a deal and dropped the revolving-door provision and agreed to propose the check-bundling measure as an amendment to the bill on the House floor.

“It’s not a very impressive performance by the Democratic caucus that promised to make this Congress the cleanest in history,” said Craig Holman, the campaign finance lobbyist for Public Citizen, a nonprofit consumer advocacy organization. “It was distressing to see the Democratic leadership work out a deal where they dropped the revolving-door provisions in exchange for getting the old bull Democrats to sign onto the bundling disclosure provisions.” The reason why the revolving-door measure was dropped is pretty simple- 43 percent of lawmakers registered as lobbyists left Congress between 1998 and 2006, according to a Public Citizen study. “A good number of members of Congress and high-ranking staffers see lobbying as their next career move,” said Meredith McGehee, policy director for the Campaign Legal Center. “They believe that money is going to pay off their debts and put their kids through college. They don’t want to give it up.”

While I am proud that Speaker Pelosi really tried to get some reform with teeth, the fact that Democrats and most Republicans were unwilling to go there is frustrating. Yes- it’s a first step. But it is like leaving the fox in charge of the hen house. No true reform ethics reform (or campaign reform for that matter) will ever happen as long as Congress is in charge of policing itself.

Now on to Iraq. The House passed Thursday night a $120 billion war-spending bill that does not set dates for making adjustments in our Iraq policy and redeploying our troops. One of the primary reasons that the Democrats took control of Congress was because the American people are fed up with this war and wanted the Democrats to find a way to extricate us from this quagmire.

President Bush vetoed the first war funding bill earlier this month, because it contained timetables for removing U.S. troops from Iraq, a provision pushed by Democrats and some Republicans. As they were faced with continued White House opposition after the veto, the Democratic leadership agreed to drop the withdrawal language so the spending bill could be moved by Memorial Day when they go on recess.

Yes- the current bill contains a set of political benchmarks that the Iraqi government should meet to keep U.S. reconstruction aid flowing, the president must submit reports in July and September indicating progress in meeting those goals and for the first time, explicitly states that U.S. forces would leave Iraq if asked by the Baghdad government, I don’t think this is why the American people voted for change in 2006. They wanted something stronger.

Here too- politics played too much of a role. Former Senator and presidential candidate John Edwards has rightfully said that Congress should have remained committed to their original bill and put the onus of not funding our troops for their current operations on the president since he continues to vow vetoes. The Democrats were too afraid of being characterized as unsupportive of our troops to take this stand and take the risk.

In both cases the Democratic leadership was too quick to compromise. Maybe if they had continued to hold their ground- they would have been able to gain more of their own agenda into both of ethics reform and war funding.

I don’t mean to suggest that the Democratic Leadership should have become as intransigent as “The Decider”, but they shouldn’t roll over right away like a submissive puppy.

Recently I received an email that went something like “We have it so well, we shouldn’t be “whining” about the problems we see in the world- more specifically in a world defined as this country under the presidency of George W. Bush.  In other words- don’t be one of the “nattering nabobs of negativism”- to use William Safire’s memorable alliteration.

The upshot of this was that as a people living in a prosperous nation we really should be grateful for our blessings and shut up about our concerns- espciecllay those concerns we have with domestic issues.

I don’t think that anyone would disagree with the fact that those of us who have the education and technology to write critical pieces like those that appear on this blog and countless others are blessed.

I am aware that my education and many of the opportunities afforded to me have made my life very good. Yes, I have disabling AIDS and I feel the sting of prejudice that comes from being gay- even in the gay Nirvana that is San Francisco. But my life is better than most in the world and many in this country.  I have days where I am quite ill  and days where I get immobile due to depresseion but I know that I am rather fortunate - I have a relatively good income and decent healthcare.

Bottom line- I am privileged. But does this not give me the right (if not the duty) to ask society to be better? Do we not all have the right to point out the problems in our country and our world?

On a recent trip to Washington DC to talk about problems of the implementation of the new Ryan White Treatment Act with members of Congress,  I brought my pile of unread magazines to entertain me on the no-frills (i.e. no video programming) flight. One article I read in “The New Republic” struck me in particular.  I unfortunately left the issue in my hotel room and am not able to cite it directly. But the article essentially read that although we live in an age that seems horrific where violence is rampant, humans have become less violent and more humane since our cave dwelling dawn and have evolved in this regard progressively thoughout our history.   I remember distinctly that the article opened with the description of a medieval entertainment common in Paris. A cat would slowly be lowered over a fire and the audience would squeal with glee as they watched cat’s unspeakable torture and ultimate death. Although certain forms of animal cruelty exist in our culture- it is no longer considered acceptable by our society. We (society) are repulsed by such actions.

Have we evolved as a species because we allowed the status quo to be maintained without any thought or have we evolved because a voice within society criticizes the status quo and dares us to be better? I would posit the latter.

We can always be better. We can strive at being a model of humanity at its best. We have the responsibility to question and look at creating the best possible society- the best possible world. John Winthrop- the creator of the phrase “a city on a hill” in 1630 (NO it was NOT Ronald Regan!) was referring to a narrowly constructed puritanical approach that is not unlike the purity demanded in Islamic jihadists although he did also mention the concept of “Christian charity” as a hallmark of the new society in New England. John Kennedy used Winthrop’s sermon in one of his important early speeches just 11 days before his inauguration. He laid out four principles that he felt should be the guiding principles of government that would lead to being a shining example- “a city on a hill”. Those principles are: courage, judgment, integrity and dedication.  These are noble principles and they should guide our actions.

Maybe one calls it noblesse oblige, I call it a social conscience. I believe strongly that we all have an obligation to be critical of power and the status quo.

If we didn’t have a history of questioning our values, where would we be.  A vox clemantis in deserto – a voice crying in the wilderness is originally from the scriptures in Isiah, but the term came to be synonymous with a voice that points out the corruption of society after it appeared in the elegic poem “Vox Clemantis” by John Gower recounting the 1381 Peasant Revolt in England.

We should never stop criticism of where we are and where it looks like we are going only because we are satisfied in our own personal lives. We should think bigger than that. We should always be critical of how power is used, how society devleops and how we can vision a world where want is no longer, where violence is no longer and where society is the epitome of humane behavior and compassion.

Is it possible to attain that world? Are we still too attached to our most basic “lizard” brains? Maybe at the moment.  But look how far we have come since our early days as a species over the past 100 millenia.  We have a long journey ahead of ourselves if we don’t destroy the world first.   

If we languish in the status quo and do not continue to ask hard questions and conitnue to be the voice crying in the wilderness- we will never evolve further than where we are. The greatest gift that we have been given through evolution (or God – if you wish) is a mind – one that doesn’t just accept without question. Being critical isn’t negative it is the most positive action we can take.

May 1st has been a day historically associated with workers rights and has become a day to rally around immigration reform issues. The issue is heated and has shown a deep divide in this country that surprisingly enough doesn’t seem to line up in the usual conservative and liberal paradigm. President Bush, and some conservative legislators from boarder states are on the side of comprehensive immigration reform aligned with many liberal members of Congress. The majority of Republicans in Congress and the majority of Americans are clearly against any sort of comprehensive immigration reform and have a great deal of anger about the issue.

Why am I writing this?

I have been surprised by the vitriol that people whom I know have used in this debate. Some of the people that I usually describe as “liberal” and who I assumed would be supportive of issues on undocumented immigrants seem to be steeped in a lot of the rhetoric and are aligned with the views expressed by the majority of Americans which tend to blame these immigrants for the current problem. What I have heard from family and friends has made me uncomfortable and seems to be based solely on emotion. On the flip side my position has been driven by my personal sense of morality and compassion not by data and therefore is based on my “gut” too.

I know from my work in public policy that a position that is not supported by the data is circumspect. Since my position and the position held by those that are at odds with me are positions that are born from the gut- from emotion- and less from a rational analysis of the data they do not lend themselves to a robust discussion on policy . So I decided it was time to do a little research to see what the data say and what direction the data take to support a rational, not emotional, policy conclusion.

I realize that my own position needs to be fluid and open to being informed by what the data tell me. My goal here is to vet out some the reality from the rhetoric in as manner that is as unbiased as possible. I am engaging in this exercise so I can evolve my own thinking based on the facts rather than my intuition and moral compass. But I want to share the fruits of this labor with friends, family and other interested parties who regularly read my blog so we can all come to our own conclusions based on fact and not rhetoric.

As stated above, my purpose here is to approach the subject with as little bias as possible but as in all things- personal conviction and bias creep in. So I need to disclose my position before I continue. Due to moral and ethical beliefs, I support comprehensive immigration reform which includes a road to citizenship for undocumented immigrants. This puts me in the odd position of agreeing with President Bush- a position that makes me feel— well creepy! I bristle at the term “illegal immigrants, personally opting for “undocumented immigrants”, because I have found that too often the former phrase sounds racially charged and does not truly reflect what I believe is the real illegal activity – employers hiring undocumented workers. I live in San Francisco which is a sanctuary city for undocumented immigrants and have always supported that status for the city. I realize that my position puts me at odds with most Americans- but this is not something unusual for me. All that being said, I hope that the research reported hear can lead to conclusions based on facts and not based on emotions no matter what our current bias may be.

Overall Statistics

Let’s talk numbers first so we know exactly what we are talking about. These statistics are from the Pew Hispanic Center. Founded in 2001, the Pew Hispanic Center is a nonpartisan research organization supported by The Pew Charitable Trusts. Its mission is to improve understanding of the U.S. Hispanic population and to chronicle Latinos’ growing impact on the entire nation. The Center does not advocate for or take positions on policy issues. It is a project of the Pew Research Center, a nonpartisan “fact tank” in Washington, DC.

According to the Center there are 12 million people living in the United States “illegally” and 1 in 20 workers (5% of the US workforce) is undocumented. Their statistics show that undocumented workers have a huge impact on certain industries. 1 in 8 workers in food preparation, 1 in 7 in construction, 1 in 6 in cleaning and janitorial, 1 in 4 in farm work, dry walling and roofing are undocumented.

According to a 2004 study by the Urban Institute, a nonpartisan economic and social policy research organization, 57% of undocumented immigrants are from Mexico, 23% from other Latin American countries, 10% from Asia, 5% from Europe and Canada and 5% from the rest of the world.

The Urban Institute found that nearly all (96%) of undocumented men (over 18 years of age) are in the workforce. Their workforce participation rate exceeds that of men who are legal immigrants or who are U.S. citizens. The reason for this high rate of workforce participation is not due to the fact that undocumented immigrant men are younger, less likely to be disabled, retired or in school the study concluded. This counters the idea that they have a higher rate of workforce participation than others primarily because they are willing to work for substandard wages that fall below minimum wage requirements that are in place for legal immigrants and U.S. citizens. The study found no validation for this theory.

According to the same study undocumented workers earn considerably less than working U.S. citizens. About two-thirds of undocumented workers earn less than twice the minimum wage, compared with only one-third of all workers. Undocumented workers make up less than 10 percent of the 43 million low-wage workers in the United States.

Contrary to public perception, the Urban Institute found that women make up a substantial share of the undocumented population- 41%. Additionally about 1.6 million children under 18 in the United States are themselves undocumented immigrants. Another 3 million children with undocumented parents are U.S. citizens because they were born here.

The last time there was any sort of immigration reform was in 1986 during the Reagan administration. Many critics of comprehensive immigration reform point to the amnesty granted in that bill and lack of provisions for substantive deportation as the reason for the surge in undocumented immigration that has since occurred.

The Cato Institute, viewed predominantly as a conservative think tank and whose stated mission is is “to broaden the parameters of public policy debate to allow consideration of the traditional American principles of limited government, individual liberty, free markets, and peace by seeking greater involvement of the lay public in questions of public policy and the role of government”, has found other issues at play in its analysis of that law.

According to a study by the Cato Institute published in 2006, the 1986 law failed because it lacked any expansion of legal immigration to meet U.S. labor needs. It legalized 2.7 million immigrants and ramped up enforcement, but with no allowance for the entry of new, legal workers, the population of illegal immigrants soon began its inevitable increase to the current level of an estimated 12 million.

This analysis goes on to say that United States Department of Labor Department projects our economy will continue to create a net 400,000 or more low-skilled jobs annually in service sectors such as food preparation, cleaning, construction, landscaping and retail. They conclude that a visa cap below the actual demand in our economy would only perpetuate the problem of illegal immigration and the current visa cap is much lower for these labor sectors.

Why not just apply to be a citizen through the legal process?

This leads us to discuss why undocumented immigrants do not just apply for a visa in the legal way. Many Americans unfamiliar with our arcane immigration laws believe that undocumented immigrants could easily legalize their status and become part of mainstream America if they simply took the time to fill-out the correct paperwork. Unfortunately, nothing could be further from the truth. Under our current system, most undocumented immigrants do not qualify under any of the overly restrictive categories available for individuals wishing to immigrate to this country.

According to a paper published by the American Immigration Lawyers Association (AILA), the narrowly defined eligibility categories under our current immigration system serve neither our economic interests nor the interests of families seeking to reunify. Generally, foreign-born individuals can immigrate to this country in one of three ways: through family sponsorship, through an employer sponsor, or by winning one of the limited number of visas in the Diversity Visa Lottery.

To qualify under the family categories, the prospective immigrant must have a close family member (defined very narrowly) living in the U.S. legally and eligible to sponsor the foreign relative. However, the waiting times in many of these categories are lengthy. For example, a U.S. legal permanent resident from Mexico may have to wait 10 years or more to bring his or her spouse into this country. Sponsoring a sibling could take 20 years or more from certain countries.

The employment-based route is equally outdated and unworkable. Even assuming the U.S. employer can negotiate the complicated, multi-agency process and prove that there are not sufficient U.S. workers who are able, qualified, and willing to perform the work in question, there are only a very limited number of employment visas available. As mentioned before the visa cap is woefully low. In the “other worker” category, only 5,000 visas per year are available—nowhere near the number necessary to meet our economy’s need for these essential workers. Once again, waiting times in this category can run a decade or more.

As for the Diversity Visa Lottery, it is available only to individuals from countries that send relatively few immigrants to the United States, and provides only a limited number of visas per year.

The AILA analysis states that three-year, 10-year and permanent bars to admission render most undocumented immigrants ineligible to receive a permanent immigrant visa, even if they were to qualify through a family relation or via employer sponsorship. The 1996 immigration law created three-year, 10-year and permanent bars on admission to the U.S. for a variety of immigration status violations. These bars apply widely and affect immigrants who have family in the U.S., have worked and paid taxes in the U.S., and in many cases are otherwise eligible for permanent resident status. The three-year bar applies to individuals who have been unlawfully present in the U.S. for a continuous period of more than 180 days, but less than one year, and who voluntarily depart the country. The 10-year bar applies to individuals unlawfully present in the U.S. for a continuous period of one year or more and who depart—whether voluntarily or involuntarily. The permanent bar applies to any person who has ever been ordered removed (or has resided in the U.S. unlawfully for more than one year in the aggregate), leaves the United States, and then returns or attempts to return without being admitted.

Thus, even if an undocumented individual is eligible to become a permanent resident through family or employer sponsorship, he likely will be unable to attain that status—he is ineligible to remain in the U.S. and “adjust his status” here (Section 245(i) of the Immigration and Nationality Act has expired), and he is ineligible to receive a permanent immigrant visa at a U.S. consulate until he has been outside the U.S. for the three- or 10-year period, depending upon the circumstances. If subject to the permanent bar, he will remain ineligible for life.

Th AILA paper concludes that “rather than stemming illegal immigration, these bars encourage people to remain in the U.S. in an undocumented status. The bars undermine rather than promote our country’s national security goals. If we eliminate these rigid bars, individuals will be encouraged to come out of the shadows and normalize their status by leaving the country and applying for a lawful visa authorizing their reentry.”

Reliance on Public Benefits

There are a lot of questions about whether or not undocumented people rely too much on this country’s public benefit system. Many folks stating that these people really come here to rely on our benefits. As noted before 96% of the men coming here work and do not rely on welfare as has often been reported. This issue was addressed in the article “Care Expenditures of Immigrants in the United States: A Nationally Representative Analysis.” published in American Journal of Public Health, Vol. 95, No. 8, August 2005. The article found that “undocumented immigrants are ineligible for the vast majority of state and federal benefits and are only eligible for those that are considered important to public health and safety. In fact, many legal immigrants are also ineligible for most federal benefits. As a result, health care spending for immigrants is approximately half that of citizens.”

Paying Taxes

According to a New York Times article on April 5, 2005, “…the estimated seven million or so illegal immigrant workers in the United States are now providing the system with a subsidy of as much as $7 billion a year….Moreover, the money paid by illegal immigrants and their employers is factored into all the Social Security Administration’s projections.”

According to that April 6, 2005 New York Times article, “Starting in the late 1980s, the social Security Administration received a flood of W-2 earnings reports with incorrect—sometimes simply fictitious—Social Security numbers. It stashed them in what it calls the “earnings suspense file” in the hope that someday it would figure out to whom they belonged.

In the current decade, the file is growing, on average, by more than $50 billion a year, generating $6 billion to $7 billion in Social Security tax revenue and about $1.5 billion in Medicare taxes.

It seems that the federal government is relying on these revenues. It factors in the revenue while not factoring in a later expenditure. This indicates that there is full knowledge that there will never be claims made in either the Social Security system or in the Medicare program by any individual associated with these contributions.

Not surprisingly enough the mismatched W-2’s fit like a glove on illegal immigrants’ known geographic distribution and the patchwork of jobs they typically hold. An audit found that more than half of the 100 employers filing the most earnings reports with false social Security numbers from 1997 through 2001 came from just three states: California, Texas and Illinois.

That New York Times article on April 5, 2005 stated, “…the estimated seven million or so illegal immigrant workers in the United States are now providing the system with a subsidy of as much as $7 billion a year….Moreover, the money paid by illegal immigrants and their employers is factored into all the Social Security Administration’s projections.”

Why aren’t employers concerned about illegally hiring undocumented workers?

In March 2005, Wal-Mart, a company with $285 billion in annual sales. was fined $11 million for having untold hundreds of illegal immigrants nationwide clean its stores. “The federal government boasts it’s the largest of its kind. But for Wal-Mart, it amounts to a rounding error—and no admittance of wrongdoing since it claims it didn’t know its contractors hired the illegals” wrote the Christian Science Monitor on March 28, 2005.

“If it weren’t so easy for employers to skirt worker ID verification, the settlement’s requirement that Wal-Mart also improve hiring controls might have a ripple effect in corporate America. but the piddling fine will hardly deter businesses from hiring cheap labor from a pool of illegals that’s surged by 23 percent since 2000….But enforcement is pathetically inadequate, especially since 9/11.” After 9/11 enforcement by Immigration and Customs Enforcement (ICE) has almost exclusively focused on boarders and not employers.

The Immigration Reform and Control Act of 1986 provides for sanctions against businesses that hire undocumented worker. In a stroke of bad timing the law was enacted once Mexico-US border maquiladoras run by US corporations began closing, and those workers streamed across the border (most of these factories moved to Asia), searching for jobs of any kind. But any fines incurred are really considered just a cost of doing business for most companies.

In a paper “Immigration and Compliance for Small Businesses” by Samantha Barlow Martinez a partner at Muskat, Martinez & Mahony, LLP, a labor and employment law firm, the consequences for violations regarding the hiring of undocumented workers is outlined and it shows just how negligible are any real negative consequences for illegal actions by employers. Obviously, either hiring or continuing to employ an undocumented alien once his undocumented status is discovered is a violation. A company may have either actual knowledge of an employee’s undocumented status (such as when the employee tells you this), or constructive knowledge. Either kind of knowledge is treated the same under the law.

The regulation on point states that constructive knowledge is “knowledge which may be fairly inferred through notice of certain facts and circumstances which would lead a person, through the exercise of reasonable care, to know about a certain condition.” 8 CFR § 274a.1(l)(1). It goes on to give examples of when the law would infer that an employer has constructive knowledge: (1) if it fails to or improperly completes the I-9 form; (2) if it has information available to it which indicates the alien is not authorized to work, such as a Labor Certification (a form used to obtain certain kinds of work visas); or (3) it acts “with reckless and wanton disregard for the legal consequences of permitting another individual to introduce an unauthorized alien into its work force or to act on its behalf.”

Violations of this type result in civil fines of only $250 to $10,000 per each unauthorized alien, depending on the company’s past record of violations. More shockingly, “Good faith compliance with the employer verification requirements (I-9 form)” provides a defense to a charge of knowingly hiring an alien. 8 CFR § 274a.4.

Conclusions

There is widespread abject poverty and starvation in Mexico since US corporations relocated their cheap-labor plants from the US-Mexico border to Asia, and after Mexican banks and telecommunications were privatized thus creating dozens of instant billionaires and plunging millions into poverty.

US employers are anxious for more profits, and willing to exploit the poverty and fears of illegal immigrants to do so. Many of those who cross the boarder will continually try to cross even if they have been repeatedly sent back. They even risk their lives to cross often paying everything they have to “coyotes” who benefit from human trafficking and enslavement.  For many - they have no real alternatives for their survival or, more importantly, the survival of their families

Enforcement seems to focus on the worker who is looking for a better life and not the companies that exploit them. The fines are nothing more than a factor in the cost of doing business.  This fuels anger anger towards the workers and rarely, if ever, focuses on the employers and tends to exacerbate racial bias.

Currently there is virtually no legal path for these workers. Under the current system, most undocumented immigrants do not qualify within any of the overly restrictive categories available for individuals wishing to immigrate to this country.

“Our nation virtually posts two sign on its southern border: ‘Help Wanted: Inquire Within’ and ‘Do Not Trespass,” says Pastor Robin Hoover of Humane Borders. Without the help of immigrant labor, the US economy would virtually collapse. We want and need cheap immigrant labor, but we do not want the immigrants.”

Yes- we need immigration reform, yes we need to secure our boarders- but we must not stop there- we must look at all parts of the equation.

We must ease the current restrictions on visas for the types of work that attracts undocumented workers so these individuals have the opportunity to come here legally. We must also ensure that employers who hire undocumented workers realize consequences that actually discourage this practice by levying meaningful fines, ensuring mandatory prison for the executives in charge, and no loop holes to use like the ones that currently exist.

Finally we should develop a road to citizenship for those that are here and already contributing to our society. But they should not get a free pass either; there should be a consequence for their action. They should pay fines and any back taxes that they may owe for the pay that they have received before becoming eligble for naturalization.

It is clear that the problem of illegal immigration has nothing to do with entitled feelings on the part of those who cross our boarders. On the contrary- they are very productive members of our society on whom we depend. Without them, as Mayor Bloomberg of NYC said, our economy would collapse. We should not vilify these people we owe them the opportunity to become full members of our society.

According to the Cato Institute an immigration reform must reflet the underlying reality that the American economy continues to create hundreds of thousands of new jobs each yer for low-skilled workers. Those jobs are being created in retail sales, food preparation, cleaning and janitorial services, for retails salespersons, agriculture, construction and landscaping. Meanwhile, the supply of Americans willing and happy to fill those same jobs continues to shrink. We are getting older and more educated as a nation.

“Illegal” immigration continues to grow becuase our immigration law has no legal channel for a peaceful, hardworking immigrant from Mexico or another country to enter the United States legally to fill those jobs even temporarily. The result is large-scale “illegal” immigration.

The Cato Institute analysis concludes that any reform worthy of the name must offer a path to legalization for the millions of undocumented workers already here. Deporting them all would be impractical, yet continuing indefinitely with millions living in a legal twilight zone also is unacceptable.

With all of these facts now on the table. I agree with the Cato Institute. There must be recognition of our dependence on undocumented people that are here and the contribution that they make which is far greater than any cost we incur by their presence. We must look at our current immigration laws and revamp them to be more appropriate for the current economic and security needs of this country. We must also ensure real consequences for American employers that flagrantly break the law. All of these points are part of comprehensive immigration reform. This is the only way to repair our system, not just funneling money to enforcement which has clearly not worked.

Do not villify these people. Let’s do the American thing and lend them a hand. They don’t want to live in the shadows – they just want to support their families. After all – aren’t we a country that believes in family values? 

I truly started researching this piece not knowing where it would lead.  Where it has led me is to not only support comprehensive immigration reform but to support it vigorously.  Moreover I will do all I can to support the people who are here trying to create lives for themselves and their families and I will boycott the companies and businesses that flagrantly break the law and exploit these people. 

Where do you start on this subject? There are so many places to go. We could discuss the complicity of the American press in some of the worst decisions made by any President, or the idiocy of that moment four years ago where “GI” W. landed on an aircraft carrier in a fighter jet where he declared Mission Accomplished, or the fact that thousands of Americans have lost their lives in Iraq after our mission was accomplished, or the stupidity of comments like “the insurgency is in its last throes”, or the false bill of goods that was sold to the American people in order to go into Iraq (slam dunk or not) or just the fact that the President today vetoed a rational option for changing the course in Iraq.

I couldn’t begin to write in this essay all my thoughts about everything that has gone wrong with Iraq and the offense I feel that the American public was duped into a war that never had a defensible casus belli - all you need to do is look at many of my previous articles on the subject.

Some of us were offended by our preemptive war before it ever happened. Many of us protested on the eve of the war (the first preemptive one in our history). We were beating the drum that 9/11 and Iraq had nothing to do with one another- but most of the country wasn’t listening. We were saying that the war had nothing to do with terrorism and more to do with oil but again most of the country didn’t listen. Many of us thought the arguments about WMDs were specious at best, but again the country didn’t listen. We were the proverbial prophets – the vox clamantis in deserto.

I wish we had been wrong. But sadly we were not only right that this war was a bad idea- a colossally bad idea- but it exceeded our most dire nightmares.

I am sick and tired of being told that those of us who think that this war was a mistake and want to give a deadline to get out are helping the terrorists and the insurgents. What a load of bilge water.

Firstly- the current al-Maliki government in Iraq has nothing to gain by stabilizing the country and making nice between Sunnis and Shi’a. We kicked the Sunnis out of control, and implemented a mistaken policy of debaathification (we even let some Nazis stay around to make sure that the trains ran on time after WW II). The Shi’a have nothing to lose here – they have everything to gain and the Sunni feel disenfranchised by the Shi’a majority

Secondly- the idea of a “country” that is Iraq is a pipe dream that can really only exist under the hard thumb of a despot like Sadaam. The boarders make absolutely no sense for the populations that are there. Maybe that’s why there is a Civil War. The boarders are absurd – just look at what T.E. Lawrence outlined for a rational map of this region in the early 20th century.

Thirdly- there weren’t any terrorist havens in Iraq under Sadaam. Now, Iraq is not ONLY a safe haven for terrorists but it is a cause célèbre for terrorist recruitment efforts around the globe. Terrorist attacks worldwide shot up 25 percent last year. Altogether, 40 percent more people were killed by increasingly lethal means around the globe. With the rise in fatalities, the number of injuries from terrorist attacks also rose, by 54 percent, between 2005 and 2006 according to the US State Department’s Country Reports on Terrorism 2006. So someone needs to tell me how Iraq is helping in the “fight on global terrorism”. Terrorism is getting worse, not better and it doesn’t seem to me like they are waiting us out to really get their juices flowing.

Although I support a troop re-deployment out of Iraq, I have had mixed feelings about how we leave Iraq- because although I was never supportive of this insanity, my country went into Iraq and summarily destroyed it. I understand Colin Powell’s caution in those prescient remarks – “You break it you own it”. I have felt that we have some sort of moral obligation to clean up the mess we made. I still have those feelings- but our being there is really doing nothing more than delaying the inevitable- a Civil War that will not be resolved with us still around. The United States needs to own up to its colossal error and move on and allow a political solution to evolve. That’s now what we owe to the Iraqi people- or more definitively those Iraqis that haven’t already fleed or died.

The Democratic Congress today offered a rational option to withdraw militarily from Iraq and allow a regional political process in which we could still have influence to take hold, but sadly our myopic and intransigent President wouldn’t have it.

The press’s role as co-conspirator to this debacle primarily due to the inability of the third estate to talk truth to power because they are afraid of loosing their acceess to power is another low point in this whole story. Frank Rich, who has become my favorite political writer, wrote a brilliant piece in the Sunday New York Times last weekend where he outlined this incestuous relationship and the damage it has done- so I’ll point you in that direction to read a superlative bitch-slap to the press.

Let’s face it, the usually milketoast Majority Leader of the Senate, Harry Ried (D-NV) was right when he said this war is over. It is; and we must finally admit that there is no military solutiuon to the mess that Presdident Bush and his neo-conservative coterie made there. Congress today carried out the will of the people that was mandated to them in the 2006 election and the President went deaf.

So Mr. Bush the Mission is Over. Let’s just learn a lesson from this and move on. After all it was you-  Mr. President- that declared with much fanfare that the war was over four years ago.   So let’s make that little fantasy a reality, albeit 1,461 days late.