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Douglas Kmiec Headshot

The Emergence of the Political Independent

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This week, we celebrate the first anniversary of Pope Francis. With humility and profound insight into the human character, this Holy Father could not have come at a better time. Millions who had long ago embraced secularism as the only modern way to overcome the so-called "irrationality of belief" are finding themselves again believing ... or at least trying to believe.

Francis's message plays differently around the globe, but it has hit a chord in America where something has been gnawing at the body politic. The President -- for all his up and down popularity -- still seems unaccepted by those who somehow think 2008 can be recounted. Even those who danced and high-fived in Chicago's Grant Park wonder why the rhetoric of hope at thousands of feet of political altitude touches ground or reaches a destination so rarely.

It certainly is not a lack of asserted Presidential power -- as the dubious legality of drone strikes and NSA spying reveals. While such expedients may protect us from a terror figure here or there, the disregard of legality likely emboldens Putin to look at Crimea for settlement. Could Sarah Palin's yard be next?

But hope is a stubborn virtue and disappointed though we may be, especially when the game clock is ticking so fast and health care and immigration reform still sit immobilized on the bench, we look for reasons to be optimistic.

Enter Francis with a message of joy and caring for others and before you know it, the strength returns, not only to object to the judicial expansion of corporate privilege and the misdirection of America toward things material, but also enough courage of conviction to see ourselves actually entering the arena to stimulate needed change.

Why it's even enough to prompt an old guy like me to run for Congress. Francis wrote, initiative is needed so that a "community gets involved by word and deed in people's daily lives; it bridges distances, it is willing to abase itself if necessary..."

Running for Congress is certainly abasement. The self-confidence and persuasion needed to approach a stranger on the street for a nominating signature is great, but there are dividends. The resulting conversations do bridge differences and they also illuminate. A young doctor too young to retire bursts out in frustration against hospital admittance and patient care guidelines set more by credit report than diagnosis; a once prominent videographer discloses that after losing his house to foreclosure and his wife to the realities of foreclosed opportunity, now lives in his car observing those of his neighbors who have held on to appearances.

I listen, try to help especially my new homeless friend, and let his perseverance fuel my determination to run a positive campaign -- but not under the party label, but as an independent.

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Having been a mouseketeer in both political parties (Reagan's constitutional lawyer; Obama's ambassador), I sadly report that neither political party has a clue about how this train of state has drifted from its track. The Democrats think all you have to do is raise taxes on the rich and send a check to the poor. That is insulting to both, and usually counterproductive. The American population today is as bright as ever, and we have the same desire as our predecessors to undertake a life of purpose; it takes only a moment's reflection to see that a welfare check hardly fits the bill. Democrats settle for too little when they fill the stomach with food, but not the mind with useful knowledge. Meanwhile, the Republicans are so busy trying to fend off the Democrats that they have no inspired ideas of their own and their program becomes merely "I've got mine, good luck getting yours."

A contemporary case in point? Take the page one New York Times story on March 9, 2014. There, a hedge fund is reported to have basically churned millions of dollars, not to make a better product or secure increased manufacturing presence for the United States in the global market, but principally in the employ of lobbyists to convince existing or former members of Congress that another firm is evil, fraudulent and must be heavily regulated. Of course, until the New York Times did its exposé, few knew these complaints were not from genuine consumers, rather than from a financier profit-taker working in the vineyards of disparagement to grow wealthy on the imposed regulatory misfortune of others.

If what is reported in the Times is true, and the reporting was done by three of the Times more accomplished journalists, the United States is exhausting itself not by making products of higher quality and lower price than other countries, but by twisting ourselves into knots to gain economic advantage over another firm by means of "bribery" or political manipulation of regulatory barrier.

This is why the judicial notion of treating corporations as people with free speech rights is so insidious. An individual attempting to pay a public figure to destroy the economic advantages of a competitor would be open to bribery charges and a host of common law torts for commercial interference.

By contrast, corporations with the advantage of being treated as persons now get the same right of expenditure, but, of course, the magnitude of corporate treasury dollars typically exceeds that within the wallet of an individual. Moreover, attempts at imposing criminal liability on corporations have been rare and unsuccessful. George Washington warned us of the dangers that attend political parties, including their use to seek revenge against a competitor.

Washington wrote:

The alternate domination of one faction over another, sharpened by the spirit of revenge natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism.

Rather than being devoted to finding the best policy alternative, the divisions of party leave us to pursue only the second or third best alternative, usually the one that gives the least amount of credit to the other side. It is a downward spiral toward ever more narrow and inflexible partisanly limited options.

In California, there is a movement to have voters declare their independence from divisive, partisan politics. There is a growing urgency for independence of thought in political choice.
For example, popular USC political scientist, Dan Schnur, is pursuing the independent path for state office. Like myself, Marianne Williamson is another independent seeking a spot in Congress. Marianne is an independent candidate in District 33, vying to succeed retiring Henry Waxman. My opponent is Julia Brownley, a fairly complacent down the line Democrat and two Republicans, one of whom is ostensibly getting money from the uber tea partiers, the Koch brothers.

I met Williamson for the first time Saturday when I stopped in to listen to Williamson lay out her positions at a neighbor's residence. I came away extremely impressed. Her presentation on the corruption invited by Citizens United and the mistaken characterizing of corporations as persons and the dangers of treating money as speech could not have been more eloquent.

Had she a little more seniority, she would likely make a splendid presidential candidate.

By the way, being independent does not preclude finding like-minded allies within the political parties. That's the whole point: picking and choosing among the best alternatives, including the best potential officeholders regardless of party label. In this regard, I already have my 2016 candidate for President. Independence of mind means I need not wait for any nominating convention to appreciate the wisdom of endorsing Democrat Hillary Clinton for President in 2016. The endorsement specifics are on my campaign website.

Mrs. Clinton and I worked together in the Department of State, and I am much admiring her efficient and effective administrative capability. As a matter of substance, we don't see eye to eye on all issues, indeed we differ significantly on some important ones, but we have this fundamental agreement that the exclusion of women from any public or private opportunity on the basis of gender is hurtful and irrational. Mrs. Clinton has had to confront gender bias personally; I have seen it vicariously in the limitation on opportunities experienced over four decades of teaching by my female law students or by my three daughters in comparison to the opportunities available to my male students and my two sons. The election of Mrs. Clinton should accomplish for women what the election of Barack Obama did for those of minority race -- the door marked "public service" will at long last be open to all.

But first things first: Elect this independent to Congress, and in so doing, promote the rights of all rather than the privileges of some.