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Martin Dyckman

Martin Dyckman: Genetic testing bill gives bosses power they shouldn’t have

Some perfectly objective news stories virtually write their own editorials. Here is the top of a recent one from the PBS NewsHour:

“A little-noticed bill moving through Congress would allow companies to require employees to undergo genetic testing or risk paying a penalty of thousands of dollars, and would let employers see that genetic and other health information.

“Giving employers such power is now prohibited by legislation including the 2008 privacy and nondiscrimination law known as GINA. The new bill gets around that landmark law by stating explicitly that GINA and other protections do not apply when genetic tests are part of a ‘workplace wellness’ program.”

That summary overstates, but only slightly. Employers already are entitled to other types of personal health information from workers who take part voluntarily in workplace wellness programs. And they’re allowed to discount health insurance premiums to those who do. This means, of course, higher premiums for those who don’t. In other words, there can be a penalty for saying no.

If this legislation (H.R. 1313) passes, workers could be compelled to undergo genetic testing, the results to be shared with their bosses, or pay that penalty for refusing. Whether it would amount to “thousands of dollars,” as the story said, is unclear.

This development is as sinister, if not more so, than anything George Orwell imagined on the part of the fictional dictator Big Brother.

Let’s not forget that government, from the White House to the courthouse, is usually the biggest employer around.

The House Committee on Education and Workforce approved the bill on a 22-17 party-line vote. Freshman Rep. Francis Rooney, R-Naples, was one of the 22.

I asked his press office why Rooney would support something like that. Spokesman Chris Berardi replied in an email that wellness programs “are a popular way to lower health insurance premiums for workers” and that 61 percent of all employers offer them.

They are “completely voluntary, and will remain that way under H.R. 1313,” he said. He claimed that opponents “have no evidence” to argue that non-participants pay more for health insurance.” Those who oppose 1313, he said, “are spreading false information in a desperate attempt to deny employees the choice to participate in a voluntary program that can reduce health insurance costs and encourage healthy lifestyle choices.”

That defense strikes me as weak if not disingenuous. At the least, it begs three questions, the largest of which is whether people who now participate “voluntarily” will still want to do so once employers have the power to snoop into their DNA.

Another question is whether 1313 opponents are trying to deny anything but the power of employers to go where they shouldn’t go.

The third is how much more money would be charged to people who refuse to participate in wellness programs that would make their DNA as accessible to their employers as their home addresses and telephone numbers.

Now, what is wrong in principle with opening that door to your benevolent employer? Especially when the DNA can tell only that you have a higher risk of some disease, not that you will actually develop it?

Here’s why. If I’m considering several employees for a long-term investment in expensive training that would make any of them essential to the company’s future, knowing that one is at higher risk of, say, breast or ovarian cancer might just make a difference.

Or if I need to trim my workforce, it would be useful to know which employees have a higher statistical risk of expensive diseases — or of bearing children with such costly genetic disorders as cystic fibrosis.

Genetic information can be enormously useful in preventive medicine. GINA, the 2008 law, allows for that. It provides for limited exceptions.

But the misuse to which such data could be put is illustrated by what the law flatly prohibits. It is an unlawful practice “to fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee” because of genetic information, or “to limit, segregate or classify the employees … in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee as an employee …”

H.R. 1313 does not expressly repeal that. But once employers have access to potentially compromising DNA information, it would be easy to use it in the prohibited ways. Who would know?

In a typical Washington example of calling black white and wrong right, H.R. 1313 is named the “Preserving Employee Wellness Programs Act.”

According to NPR, 1313 caters to the wish list of the American Benefits Council, a lobby representing Fortune 500 companies and other large employers. Its present chairperson, Allison R. Klausner, represents large employers such as IBM, United Healthcare and AT&T.

In congressional testimony, it claimed that lack of genetic information puts wellness programs “at risk” and deprives employees of benefits like “improved health and productivity.”

That’s nonsense. The law already allows employees to share genetic information with health professionals and board-certified counselors.

The word “productivity” is the likely clue to what that this employer lobby actually cares about.

The more that people hear about H.R. 1313, the more they should hate it and the less likely it would pass on its own merits, or lack of them. The strategy, apparently, is to fold it into the overall Ryan-Trump health care scheme.

That would be yet another reason, not that any more are needed, to trash the whole atrocious mess.


Martin Dyckman is a retired associate editor of the Tampa Bay Times. He lives in Asheville, North Carolina.

Martin Dyckman: Memory of FSU professor’s enduring lesson on free speech, tolerance

An enduring lesson on what freedom of speech should mean to a college campus was taught more than a half-century ago by one of my favorite professors at Florida State University, Lewis M. Killian.

I hadn’t taken his class or even met him at the time but something I had written was a hot discussion topic that day.

It was a letter in the student newspaper, the Florida Flambeau, mocking the Kappa Alpha fraternity for wearing Confederate uniforms and waving the Rebel flag during homecoming festivities. As I recall, there was a reference to the hind end of General Lee’s horse. I was a freshman, and the hyperbole was sophomoric.

It was a fortuitous time to have taken ill and be in the campus infirmary. Some young men, I was told, were looking for me.

“He didn’t have a right to write that,’ exclaimed a student in one of Killian’s sociology classes.

The professor exploded.

“You can disagree with it all you like,” he said, “but don’t ever say in MY class that someone doesn’t have a right to write something.”

This is the place to mention that Lew Killian had grown up in Macon, Georgia, with an accent thick as clabber. In his memoir, he called himself a Cracker.

And he was the faculty adviser to the Kappa Alpha chapter at FSU.

Outgrowing his background, he had become emblematic of the conscience of a new South.

Knowing both worlds, he taught his most popular class, race relations, with strict objectivity and sensitivity to the irascible emotions of the time. Because of his support for students engaged in the lunch counter sit-ins of December 1960 the Tallahassee Chamber of Commerce wanted him fired. So did the more racist members of the Board of Control, which had the power to do it. Nothing doing, said FSU President Robert M. Strozier, whose fatal heart attack in 1961 was widely blamed on the segregationist harassment he had withstood.

There were segregationists among faculty and students too. What people like Killian and Dyckman said about race was as unwelcome to them as “The Bell Curve” author Charles Murray‘s views are to the students—and, perhaps non-students—who rioted against him at Middlebury College recently.

But at least the segs let us speak and write. The Middlebury rioters owe an apology not just to Murray, but to the conservative students who wanted to hear him speak. They owe one also to the students and faculty who wanted to debate Murray responsibly and rationally.

They also owe some time in jail, in my opinion.

Nothing is more dangerous to a democracy than the suppression of speech. It’s how Hitler‘s brownshirt thugs paved the way for his dictatorship. It’s inexcusable whether it comes from the right or the left.

Nothing could be more opposite the primary purpose to which colleges and universities should be dedicated.

That is to teach critical thinking skills to the people who soon enough will be in charge of our economy, our government and our future, whether as business leaders, teachers, politicians or simply voters. Critical thinking is essential not only to all academic disciplines; it is vital to everything.

But you can’t inspire critical thinking in people who are willing to hear only what they want to hear. You can’t teach it to people who would try to get a professor fired rather than personally challenge him or her to rationalize a provocative expression. You can’t teach it to people who demand a “trigger warning” lest they hear something that might offend their fragile sensibilities.

Having spent a little time around Middlebury while my wife was studying for three summers there, I was astonished that something like the Charles Murray riot could happen on that campus.

But it isn’t so surprising in the light of some disturbing data reported in a Washington Post column the following week.

Since 1970, an enterprise called the General Social Survey has been polling public attitudes toward allowing such controversial people as racists, atheists, and communists to speak in their communities. One question, almost presciently describing the case against Murray, gave the example of “a person who believes that Blacks are genetically inferior.”

In 1976, about 84 percent of respondents 18 to 25 with some college education said yes, that person should be allowed to speak. Older and non-college people were somewhat less willing.

But by 2014, support among all groups had dropped to 50 percent, with college-educated youths posting by far the largest decline. They were also less willing than before to hear a communist speak.

It may seem strange to be talking about their intolerance when it is intolerance itself that the young people think they are defending against.

But no person has the right to decide for others what “truth” they will hear. The remark attributed to Voltaire applies: “I disapprove of what you say, but I will defend to the death your right to say it.”

Near the end of a long life in which he had often been vilified, Thomas Jefferson wrote this: “We are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it.”

It’s by those lights that Lew Killian lived and taught. Bless his memory.


Martin Dyckman is a retired associate editor of the Tampa Bay Times. He lives in Asheville, North Carolina.

Martin Dyckman: What have we become in the time of Trump?

A young woman who works at a store that we frequent told of a recent experience that haunts my mind, as I hope it will yours.

She and her husband were homebound from a European vacation. As the aircraft waited on the tarmac at Amsterdam’s airport, an announcement told three named passengers to identify themselves to a flight attendant.

Every name, she noted, sounded Middle Eastern.

Each was asked to produce a passport, even though all the passengers had had theirs inspected at least twice before boarding.

A young man near her was one of those singled out. As he stood to retrieve his bag from the overhead bin, she saw that his hands were trembling. She wondered whether he would even be able to handle the bag.

A flight attendant checked the passport and left him alone.

He took his seat, still shaking.

“Are you all right?” she asked him.

“I am an American,” he said. “I was born here.”

So that is what we have come to in the time of Trump.

Concurrently, wire services reported that Khizr Khan, the Gold Star parent who denounced Donald Trump at the Republican convention and challenged him to read the U.S. Constitution, had canceled a speaking engagement in Canada after being told, or so it was said, that “his travel privileges are being reviewed.”

His son, Captain Humayun Khan, was protecting his troops in Iraq when he was killed by a suicide bomber.

“This turn of events is not just of deep concern to me but to all my fellow Americans who cherish our freedom to travel abroad. I have not been given any reason as to why,” Kahn said. The statement did not say who told him about it.

The cancellation was announced on the same day as Trump signed a new travel ban targeting Muslims abroad.

The speech Khan had been scheduled to give in Toronto was on the subject of “tolerance, understanding, unity and the rule of law.”

Khan, a native of Pakistan, has been an American citizen for more than 30 years. There is no legal ground for the government to restrict travel of a citizen who is not accused of crime.

A statement from an unnamed Customs and Border Patrol official, quoted by POLITICO, declined to comment on the specific report but asserted that the agency doesn’t contact travelers in advance of their foreign trips. It hinted, however, that questions might have been raised about Kahn having or having applied for trusted traveler status, which speeds up airport security checks.

We need to know more about this. Was it only a rumor that reached Kahn? Was it a misunderstanding? Or something more sinister?

In any event, it was reasonable for Kahn to be concerned in the time of Trump.

Now imagine, if you will, the terror of that young man aboard the airplane multiplied millions of times by Americans with dark skins or foreign-sounding names now that ICE — Immigration and Customs Enforcement — agents are on a rampage.

It’s about American citizens, not just immigrants who are unauthorized. It’s no longer about targeting only those who commit serious crimes — which they do less frequently than legal residents. It’s about expelling everyone that ICE and its allies in some police agencies can get their hands on. Even Dreamers, those brought here as children, whom a humane president had promised to protect, are being swept up.

There are an estimated 11 million of these vulnerable people, by the way and they are your neighbors. They could be the people who built your house, picked the fruit for your breakfast, and tidied up the hotel room where you last stayed.

Think of our country without them. It will be a different country if Trump has his way, and it won’t be a better one.

The statistics are sobering.

According to a draft paper published in November by the National Bureau of Economic Research, unauthorized immigrants account for about 3 percent of our gross domestic product (GDP). Take that away, and it spells recession.

They represent 18 percent of the workforce in agriculture, 13 percent of construction employment, and 10 percent of the leisure and hospitality sector. They’re particularly significant to the economies of five states: California, Texas, New York, Illinois and, yes, Florida.

The report’s authors, professors at Queens College of the City University of New York, calculated that if their presence were legalized, their contribution to GDP would increase, significantly, to 3.6 percent. It would no longer be easy for unscrupulous employers to exploit them.

“Documented foreign-born workers,” they added, “are about 25 percent more productive … with the same levels of education and experience,” as the undocumented.

Legal workers would not replace most of them. A 2013 North Carolina study noted that “natives prefer almost any labor market outcome … to carrying out menial harvest and planting labor.”

Here, from The New York Times, are some other pertinent facts:

About 60 percent of the 11-million have been here 10 years or more. Many are homeowners. A third of those 15 or older live with at least one child born here, who has citizenship by birth. (Where will the foster care be for so many Trump orphans?) The proportion of the estimated 300,000 with felony records is half the rate of felons in the overall population. Illegal border crossings are declining; a growing number of unauthorized immigrants simply overstayed their visas.

The 11 million are here, for the most part, because America has needed their labor and the taxes they pay. The entire nation collectively turned a willfully blind eye to the underlying illegality, just as it did during Prohibition. Every president before now has tried to reform the situation in a humane way. Only now is one catering to a minority — and they are a minority — who vote their hatreds instead of the religions they profess.

A young citizen trembling on a plane. A prominent naturalized citizen who fears to travel. Parents and children terrified of separation. Business booming for private prisons.

What kind of country have we become?


Martin Dyckman is a retired associate editor of the Tampa Bay Times. He lives in Asheville, North Carolina.

Florida doesn’t need an elected Secretary of State, or Agriculture Commissioner

It would tax the imagination to come up with anything that Florida needs less than to elect a secretary of state once again. Why would the Legislature even consider that?

Sen. Aaron Bean, the sponsor, explained it the other day. As reported by, the Fernandina Beach Republican told the Senate ethics committee that in the main he wants a fifth position on the Cabinet to avoid tie votes that require the governor to be on the prevailing side or the motion fails.

Actually, he and nearly everyone else are incorrect when they refer to that group of four as “the Cabinet.” Article IV Section 4 of the Constitution provides for the Cabinet to consist of an attorney general, a chief financial officer, and a commissioner of agriculture. The governor is NOT — I repeat, NOT — a member of the Cabinet.

And because they are elected, it’s not “his” Cabinet even though the members too often vote as if it were. They oversee 12 agencies in their collective role as — to put it accurately — “the governor and Cabinet.”

To the extent that the tie vote issue is a problem, there’s a simpler and less expensive way to deal with it than the creation of yet another statewide pooh-bah with yet another six-figure salary.

That’s to get rid of the elected agriculture commissioner. Let the governor appoint the position, as does now with the secretary of state. Or have the governor and the remaining two Cabinet members jointly select someone in the same manner as the head of the office of financial regulation.

But avoiding a tie vote situation strikes me as the lamest possible pretext to elect the secretary, which Florida last did in 1998.

The more important issue is how best to oversee elections, which is the function of the office that the public cares most about. The record-keeping, the corporations’ division, the arts, library and archives are less about policy than professional management. You don’t need to elect anyone for those.

But electing a secretary of state doesn’t guarantee that the duty will be carried out in a bipartisan, nonpolitical and professional manner. The present secretary, Ken Detzner, has been accused of doing what the governor wants to discourage rather than encourage voting. The last elected secretary, Katherine Harris, is best remembered for the infamous 2000 campaign in which she was first a co-chair of George W. Bush’s campaign and then made critical decisions in his favor.

Harris’s predecessor, Sandra Mortham, spoke at the committee hearing and referred to the dicey position of governor-appointed secretaries as “very, very, very difficult” for them. She also noted that local elected supervisors of election would be better off with a popularly elected state leader than with one named by the governor.

Those are better points, to be sure, than the tie vote issue. Harris’ tenure, though, was hardly a shining example of political independence.

Though nearly half the states have elected sectaries to state to manage elections, nine have appointed boards or commissions that are bipartisan, at least in theory. One of them is in North Carolina, where despite fierce efforts by a Republican and legislature to suppress voting, the GOP-dominated board acted respectably last year. Florida should consider that method of governance.

“I think there is no magic bullet,” says Ion Sancho, Leon County’s recently retired election supervisor, who is a nationally recognized figure in the field. “It doesn’t matter a darn bit if you elect the person if they have to follow the rigged election laws passed by the Florida Legislature.

He sees no point, however, in enlarging the elected Cabinet.

There used to be six Cabinet members, plus the governor, each with their own departments, in charge of an array of agencies they governed collectively. That system was created in the aftermath of post-Civil War Reconstruction to deliberately keep the governors weak. Trouble was, with everyone supposedly watching the store no one actually did. In modern times, two of Florida’s best governors, LeRoy Collins and Reubin Askew, tried unsuccessfully to be rid of the system.

Twenty years ago, the Constitution Revision Commission set out to trim the Cabinet to the only two offices that truly need to be independently elected: the attorney general and the chief financial officer. But agricultural lobbies threatened to defeat the entire reform at the polls if it didn’t retain the agriculture commissioner. Finding themselves with four voting officers instead of the intended three, the Commission came up with the curious tie-breaking rule. Eliminating the elected agriculture commissioner would dispose of that.

Agriculture is still one of the pillars of Florida’s economy, but it’s difficult to see why it needs its own surrogate governor any more than tourism or construction do. Rick Scott’s well-advertised faults as governor don’t mean that his successor shouldn’t be trusted with agriculture to the same extent as education, which once had its own elected Cabinet member too.


Martin Dyckman is a retired associate editor of the Tampa Bay Times. He lives in Asheville, North Carolina.

History provides a bit of assurance between Donald Trump and Adolf Hitler

When current events became too depressing, I turned to history for possible reassurance. It came from what might seem an unlikely source, Volker Ullrich’s excellent 2016 biography, “Hitler Ascent 1889-1939” published in translation by Alfred A. Knopf.

There are sound reasons to hope that what happened there won’t happen here, as even though it threatens to.

There are of course many similarities between the Adolf Hitler and Donald Trump phenomena, starting with the basic facts that neither new ruler had any prior experience in public service, did not win a majority vote in a fair election, and would sooner lie than speak a truth. Hitler’s megalomania, craving for adulation and contempt for criticism were rooted, as Trump’s seem to be, in a deeply rooted personal insecurity. Hitler had no respect for independent courts or a free press.

Neither does Trump.

Both campaigned as demagogues, owed their success largely to bigotry, promised to make their countries great again, claimed they alone could “fix it,” and gave clear warning that they would attack civil rights. Both harbored worldviews that could — and in Hitler’s case did — lead their countries into massive cruelty and war. With Hitler, it was his determination to rid Germany and then Europe of all Jews and to wage a “decisive” battle against Bolshevism. With Trump it’s the demonization of Mexican immigrants and a craving to do battle with Islam, as whetted by his personal Darth Vader, Steven Bannon.

Trump doesn’t have an organized army of brownshirt thugs, as Hitler did. But he does have followers who don’t need orders to harass Jews, Muslims and foreigners, desecrate cemeteries and commit occasional murders. The list goes on.

But it’s in the dissimilarities that I found strong basis for hope that America won’t go the way the Third Reich did.

Organized dissent virtually disappeared in Germany as soon as President Hindenburg appointed Hitler chancellor in the mistaken belief that he could harmonize a Reichstag paralyzed by multiple parties. People who should have known better thought they could control Hitler better, and use him, if he were in the government rather than screaming at it from outside. And to an extent, a similar self-serving folly characterizes the Republicans in our Congress.

The German population, long inured to authoritarian rule under the Wilhelmine royalty and infested with anti-Semitism, welcomed Hitler.

“It was astonishing not just how quickly, but how easily Germany was turned on its head,” Ulrich writes. He quotes Victor Klemperer, a professor and Jewish diarist who survived against odds: “All counterweights to his power were quickly swallowed up and disappeared.”

Public opinion flipped so quickly that even Joseph Goebbels, Hitler’s propaganda minister, was contemptuous of it.

“Now, everyone is a Nazi. It makes me sick,” he said.

But in our United States, there have been massive protests nearly everywhere you look and the anti-Trump, anti-Republican demonstrations vastly overshadow those in support of our potential führer. The Congress reports unprecedented traffic in phone calls, emails and letters. The newspapers Trump hates the most are gaining subscribers handily. The polls show his approval under water; he’s the most unpopular new president since records have been kept.

Let’s keep it up, people.

The Weimar Republic, which was only 14 years old when Hitler accomplished his design to destroy it, had no resilient traditions such as ours of free speech, free press and freedom of petition. It was still possible to censor newspapers and the radio, ban the activity of opposition parties and prohibit their leaders from speaking. Under Hitler, that was expanded to jail and even to kill them on his whim.

Hitler exploited the burning of the Reichstag building — which was blamed on the Communists but which the Nazis welcomed and are still suspected of having caused — to pass emergency measures that extinguished what was left of liberty in Germany. We need to take care here that the next act of terrorism — the question is not whether but when — doesn’t incite Trump to unconstitutional repression. The wholesale deportations and the attempted banning of immigrants and refugees from selected Muslim nations give fair warning that he knows no bounds. Here, at least, we have courts that can stop him. Protecting the independence of those courts is the paramount present responsibility of the Senate Democrats.

Here we still have free elections, but nearly every Republican state legislature has passed or is considering voter suppression laws that clearly target Democrats, and our new attorney general, a lifelong opponent of civil rights, is withdrawing the federal government from the battle. Both parties are guilty of rampant undemocratic gerrymandering, which at the moment heavily favors the Republicans. Here again, the courts will be crucial as to which path America follows.

Hitler used creative accounting to finance his massive arms buildup and extravagant public works projects. Debt and inflation would have destroyed Germany had the war not done so first. Here, Trump is similarly inventive in claiming that Mexico would pay for his great wall and that economic growth will finance his excessive military budget. There should be enough genuine conservatives in Congress to put the lie to that. Thank God for the filibuster.

The most astounding difference between Germany then and the United States Nov. 8 is painfully ironic.

Germans knew almost nothing about Hitler’s personal life before or after he became chancellor. He had been in no business, except for selling his artwork, and so there had been no bankruptcies, no cheated workmen and contractors. There was no Hitler University. There had been the seeds of scandal in the suicide of his niece, Geli Raubal, who lived with him, but he wasn’t present and wasn’t blamed. He was deeply misogynistic in private, once saying that intelligent men should “make sure they get a primitive, stupid woman.” However, he took pains to hide his mistress, Eva Braun, from the public, “to maintain the myth,” as Ulrich puts it, “of the Führer sacrificing himself day and night for his people.” He had never been accused of rape or boasted of groping women in ways that could have gotten him arrested. Nor had there been any massive tax evasion, although he would exempt himself entirely later.

Contrast that to the mountain of Trumpian sleaze, much of it from Trump’s own mouth, that was known to the American public before the election. It helps to explain why nearly 10 million more people voted for candidates not named Trump than voted for him. But for the intervention of a foreign enemy and FBI director James Comey’s October surprise, he likely would have lost the electoral college too. Fixing that anachronism, which has now crowned the trailing candidate five times, ought to be an urgent national priority. Democracies don’t deserve losers.


Martin Dyckman is a retired associate editor of the Tampa Bay Times. He lives in Asheville, North Carolina.

Judicial ethics watchdog could suffer in fight for independent Florida courts

Is Florida’s judicial ethics commission about to become collateral damage in a battle over the independence of the courts?

House Speaker Richard Corcoran, the Land O’Lakes Republican, appears to have targeted the Judicial Qualifications Commission (JQC) along with the courts themselves in his campaign to curb the independence of the judiciary.

The JQC and the Supreme Court had not concluded an ethics case against Circuit Judge Mark Hulsey III of Jacksonville when Corcoran scheduled an impeachment hearing a month ago. The judge resigned.

Such intervention in an ongoing JQC matter was an event with scant precedent. Since the agency was established in 1966, there have been only three instances among more than 200 known cases, and none was exactly comparable.

— In 1975, the House held impeachment hearings on three justices after the Supreme Court had rejected the JQC’s recommendation to remove two of them for ethical violations. Two of the three, Hal P. Dekle and David L. McCain, resigned.

— In 1978, the House impeached and the Senate removed Circuit Judge Samuel S. Smith of Lake City despite his attempt to resign after his federal conviction for conspiracy to sell 1,500 pounds of seized marijuana. Gov. Reubin Askew called for the impeachment to make sure that Smith could never hold office again or collect a pension.

— In 2003, legislators dissatisfied with the Supreme Court’s reprimand of a Pinellas-Pasco circuit judge, as recommended by the JQC, threatened to impeach him and he resigned. The judge, Charles W. Cope, was accused of conduct unbecoming a judge for drunken behavior at an out-of-state conference.

The case against Hulsey, who was accused of racist and sexist comments from the bench, had not progressed nearly as far.

Asked for comment on that point, Corcoran’s spokesman, Fred Piccolo, said in an email:

“In this case, the JQC had all the information we had and still delayed. The Speaker believed taxpayers should not be paying a judge like Mr. Hulsey at all, let alone to not hear cases. The Speaker had every confidence that the Judge’s conduct warranted impeachment

” I can say with confidence that this Speaker will not hesitate to use impeachment to remove officers of the government who abuse their office.”

At that point, however, the JQC’s formal case against Hulsey was only five months old. According to the Legislature’s Office of Program Policy Analysis and Government Accountability (OPPAGA), the average JQC proceeding takes 13 months from the receipt of a complaint to the filing of a disciplinary recommendation with the Supreme Court.

Last week, one of Corcoran’s House committees took on the court itself with criticism for a JQC case that has been awaiting the court’s decision for more than a year, an uncommonly long time. It consists primarily of alleged ethical violations as a lawyer and judicial candidate on the part of Circuit Judge Andrew Decker of Live Oak.

The Public Integrity and Ethics Committee gave no warning to Decker or his attorney, who knew nothing about the meeting until it had been held. The agenda noted only that there would be a report on an unspecified JQC case.

That was a far cry from fair. The chairman, Yahala Republican Larry Metz, was quoted as saying the judge wasn’t invited because “we’re not voting on anything.”

The JQC was created in 1966 to provide a more efficient alternative to impeachment for judges accused of misconduct. Two legislative impeachment efforts had failed.

Though the agency got off to a slow start, it turned aggressive under the chairmanship of Richard T. Earle Jr., a St. Petersburg attorney, who fearlessly pursued corruption on the Supreme Court itself.

Since inception, the JQC has now filed formal charges against more than 200 judges.

When it gets to that point, it rarely ends well for the judge. Of the 206 known cases, by my count, 77 — more than a third — ended with the judge off the bench: 19 removed for violations of the Code of Judicial Conduct, 25 resignations, 4 election defeats, 4 forsaken re-election campaigns, 21 enforced retirements for various disabilities, and 4 under threatened or actual impeachment.

Most of the rest were publicly reprimanded by the court, some also with fines and suspensions. The reprimands, almost always administered in person in public sessions of the court, are meant to be humbling, even humiliating, and the cases become everlasting records. Only seven cases have ever been formally dismissed. Four, including Decker’s, are pending.

So, from what we know, the JQC has been doing a good job — to hear some judges, too good a job.

It’s what we don’t know that may be a problem. The Constitution makes all JQC proceedings confidential until the agency files formal charges. That means no acknowledgment, much less an explanation, for any of the many complaints it dismisses.

According to its most recent report, the JQC received nearly 800 complaints in fiscal 2015 and summarily dismissed about 570 of them. Only 10 proceeded to formal charges.

“A great majority of complaints,” the report said, are about nothing more than dissatisfaction with the outcomes of cases and “that is the province of the appellate courts.” The JQC’s constitutional jurisdiction is limited to conduct that “demonstrates a present unfitness to hold office.”

But as OPPAGA remarked in a January 2015 report, the confidentiality rule left it unable “to assess the efficiency and effectiveness of Commission processes, as well as the consistency of its decisions and actions.

“The Commission documents we were unable to review included complaints screened out by staff, cases dismissed by the commission either summarily or after investigation, and letters of private admonishment. In addition … we were not permitted to attend investigative panel meetings,” the report said.

The case for confidentiality is this: Judges don’t deserve to be embarrassed by publicity about unfounded complaints.

But I don’t buy that. The facts should be allowed to speak for themselves. Judges should accept that as a consequence of public office.

When the Constitution Revision Commission meets, it should provide for eventual disclosure of every complaint to the JQC — not necessarily at the outset, but once it has been either dismissed or moved further along. That’s something that Corcoran’s nine appointees could insist upon without harming the courts.

The public’s trust is something to be earned, not assumed.


Martin Dyckman is a retired associate editor of the Tampa Bay Times. He lives in Asheville, North Carolina.

Hail Britannia: U.K. could teach U.S. a thing or two about running government

Late in the campaign, the New Yorker satirist Andy Borowitz wrote that Queen Elizabeth II was offering to take the colonies back, suggesting that Americans dissatisfied with their options should just write in her name for president.

It doesn’t seem quite as funny now as it did then.

Let’s imagine, though, that we are still part of the British Empire, and that Donald Trump has moved to London and is now Prime Minister.

Imagine him waddling into the House of Commons to face that jolly good British ordeal known as Prime Minister’s Questions.

Imagine him trying to explain to the MPs and to the world on television, why he discussed a North Korean missile launch in full view and earshot of a dining room full of swells without security clearances. Imagine the barrage of questions from the opposition over why he kept a national security adviser for weeks after he was warned that the Kremlin had blackmail on the man who, he knew also, had lied about it.

Imagine him melting down under the jeers from their benches, if not also from his own side. Compared to the Commons, Saturday Night Live is gentle.

Had he been the British P.M., it might not have gotten even that far. There would have been a no-confidence vote once it became plain that he and his family were in it for the boodle rather than for the nation “Buy Ivanka’s stuff?” Really?

Or perhaps his network of Russian connections would have brought him down first.

In 1963, the British regarded minister of war, John Profumo, was forced to resign after admitting that he had lied to colleagues in denying an affair with a call girl who was also sleeping with a Russian naval attaché and spy. The scandal helped to bring down the Harold Macmillan government a year later.

What’s hardest to imagine, of course, is that Trump would have become prime minister in the first place.

In the British parliamentary system, someone like him could never get near 10 Downing Street, except perhaps as a guest, with staff assigned to carefully watch the silver.

Although Britain has no written constitution or law requiring that the prime minister be a member of the Commons, tradition demands it. There hasn’t been a PM who wasn’t since Lord Home was appointed in 1963, and even he quickly resigned his peerage so that he could be elected to the Commons. It is also assumed that the PM will be the leader of his or her party in the Commons.

Nigel Farage, the British politician most like Trump, has failed five times to win a seat in Parliament.

It’s theoretically possible for either of the major party conferences to elect a leader who isn’t a member of Parliament, but in practical terms it’s impossible. Labour Party rules, a friend in Britain tells me, require any candidate for party leader to be nominated by 35 of the party’s MPs. As for the Conservative Party, someone like Trump simply wouldn’t be their cup of tea.

As all the government ministers are drawn from the Parliament — Britain has only two branches of government — the members are particular about who leads them. The judgments of these leaders are questioned frequently and fiercely, but their basic competence is assumed.

Our Founders departed from the British model for good reasons. But is it possible that the mother country still has some lessons in governance to teach us?

We can’t require—and we shouldn’t– that our presidents have Congressional experience. Barely half—25 of 45—have fit that bill. But the parties could—and should—require by rule a certain number of endorsements from Congress to become a nominee for president.

Other good British examples:

—They don’t elect judges. (In fact, almost no one else does.)  Theirs are chosen strictly for professionalism, deportment and experience.

—Their election campaigns are measured in weeks, not years. Spending is limited strictly.

—All of their election districts are drawn by professionals and approved by entities called Boundary Commissions. That’s not to say there are no games played from time to time, but they don’t have anything like the gerrymandering scandals that betray our belief in democracy.

—There are very few political positions jobs at the highest levels of their government. Ministers come and go, but civil servants run most things.

—The most attractive example is the regular grilling that the Prime Minister must endure in the House of Commons and before the nation.

As in Britain, American Cabinet officers are frequently before legislative committees, but the president himself almost never is. The last time—the only occasion in modern times—was in October 1974, when President Gerald R. Ford voluntarily appeared before a House subcommittee to answer questions about his pardon of his resigned predecessor, Richard Nixon.

As it is, we’re likely to have a major showdown soon over executive privilege. That’s the claim made by presidents of both parties that their Cabinet officers and other appointees should not have to tell Congress what advice they give the boss. There’s nothing in the Constitution about that, so the line between talk and action has never been drawn. If the Senate is serious about probing Trump’s Russian connections, that showdown must come.

Meanwhile, can we cheer ourselves up with a rousing chorus of “God save the Queen?” We already know the tune.


Martin Dyckman is a retired associate editor of the Tampa Bay Times. He lives in Asheville, North Carolina.

Federal judges’ lifetime tenure for good reason; Tallahassee should take note

There is a profound reason why the Founders gave life tenure to federal judges, subject only to impeachment for bad behavior. As Alexander Hamilton explained it in The Federalist No. 78:

“In a monarchy, it is an excellent barrier to the despotism of the prince; in a Republic, it is a no less excellent barrier to the encroachments and oppressions of the representative body…”

Judges subject to the whims of a president or the Congress to keep their jobs would be worthless. So would the Constitution.

The founding wisdom has been confirmed time and again, most famously when the Supreme Court ruled that Richard Nixon was not above the law, and most recently Thursday, when the Ninth U.S. Circuit Court of Appeal ruled that Donald Trump is not above it either.

Although the effect is only that Trump’s immigration decree remains on hold while the court fully considers his appeal of the District Judge’s order suspending it, the three-judge appellate panel made an enormously important point.

Trump’s lawyers had argued, as the court put it, that his “decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections.” The regime had also claimed, the court said, that “it violates separation of powers for the judiciary to entertain a constitutional challenge to executive actions such as this one.” (Emphasis supplied)

A president in office less than three weeks was asserting the powers of a dictator.

“There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy,” the court said.

I hope they’re paying attention in Tallahassee, where some legislators seem to think they too are above the constitution and are trying to take down the state courts that sometimes disagree.

The current attack is led by House Speaker Richard Corcoran, R-Land O’Lakes. A constitutional amendment (HJR 1), sponsored by Rep. Jennifer Sullivan, R-Mount Dora, would prohibit Supreme Court justices and justices of the five district courts of appeal from qualifying in retention elections after serving more than 12 years in the same office.

Why term-limit only those judges? Circuit and county court judges have vastly more power over the lives and property of citizens. But it’s the appellate courts that rule on the laws that legislators enact and the decisions governors make.

Corcoran, whose ambition to be governor is no secret, has declared that his nine appointees to the new Constitution Revision Commission must be committed to neutering the judiciary.

This concerns conservatives no less than liberals. Both sides warned a House subcommittee Thursday that, as one speaker put it, the first-in-the nation term limit would “insure that the best and bright rarely, if ever, apply” for appellate court appointments.

The subcommittee approved the measure 8-7, with only Republicans voting for it. However, the two Republicans voting no portend the lack of a supermajority to pass it on the House floor.

Although there’s no precise Senate companion, term-limit legislation assigned to three committees there is in several ways worse. No one could be appointed to an appellate bench who is under 50 and it would restrict Supreme Court appointees to candidates who had been judges for at least one year.

That would have ruled out such widely-esteemed lawyers as Justice Raoul G. Cantero III (2002-2008) who was 41 when Gov. Jeb Bush appointed him in 2002 and, Justice Charles T. Wells (1994-2009). None of three significant justices in the 1950s, Steven C. O’Connell, B. Campbell Thornal, and E. Harris Drew, had previously been a judge. Nor had Attorney General Richard Ervin when Gov. Farris Bryant appointed him to the Supreme Court in 1964.

Conceptually, there is a form of term limit that would make sense: A single, nonrenewable term of 20 years, with the judge no longer having to face retention elections, and the judicial nominating commissions restored to the independence they had before Republican governors got total control over them. But what the legislators are proposing does nothing good.

As the subcommittee was told but apparently chose not to hear, there is already significant turnover in the judiciary, where judges must retire upon or soon after becoming 70. The Judicial Qualifications Commission has not been idle in getting bad ones kicked off the bench. (I’ll write more about that in a subsequent column.)

The Legislature’s attacks on the judiciary may not succeed, but the greater danger is that Constitution Revision commission, which can send amendments directly to the 2018 ballot. With the House speaker and Senate president each appointing nine members, Governor Rick Scott, another court-hater, naming 15 including the chairman; and the attorney general, Pam Bondi, as an automatic member, it will be the first of the three commissions since 1978 to be dominated by one party’s appointees and, likely, hostile to the courts at the outset. The three members whom Chief Justice Jorge Labarga named next week will have the fight of their lives to protect the courts from becoming subverted by the governor and legislature.

Labarga’s three are well suited for their mission.

Hank Coxe of Jacksonville is a former Florida Bar president and has served on the Judicial Qualifications Commission. The CRC will need to listen to him on that subject.

Robert Martinez, of Miami, is highly regarded as the former U.S. attorney there. “In addition to being a good person and excellent lawyer, with thoughtful and humane values, Bob is one of the most courtly and well-mannered people I know,” a former assistant told me.

Arthenia Joyner, a Tampa lawyer who served in both houses of the Legislature, can tell the CRC firsthand what happens when the courts and law don’t respect people’s rights. As a student in the 1950s, she took part in lunch counter sit-ins at Tallahassee and was jailed for trying to desegregate movie theaters there.

Scott, Corcoran and Senate President Joe Negron have yet to make their CRC appointments. Let them follow Labarga’s examples of integrity, experience and wisdom. One can always hope.


Martin Dyckman is a retired associate editor of the Tampa Bay Times. He lives in Asheville, North Carolina.

How can we respect the presidency, when Donald Trump clearly doesn’t?

When President Harry S. Truman threatened in December 1950 to punch out a Washington Post music critic who had panned his daughter’s singing, he wrote the letter in his own hand, affixed his own postage stamp, and did not make it public. Neither did the Post.

But America knew all about it once it had leaked to the Washington News.

“It seems to me that you are a frustrated old man who wishes he could have been successful,” the president wrote …”Some day I hope to meet you. When that happens, you’ll need a new nose, a lot of beefsteak for black eyes, and perhaps a supporter below!”

Public reaction was divided. Some people, Republicans especially, said that what Truman did was terrible. Others, fathers especially, applauded him for sticking up for his daughter.

Actually, the critic, Paul Hume, was a young man, 34, only three years into what became a long and acclaimed career at the Post. When they finally did meet, years later at Truman’s home in Independence, Missouri, they played the piano together.

Truman’s outburst comes to mind with the news of the very public way in which Donald Trump and his shrill White House shill, Kellyanne Conway, reacted to news of a department store chain, Nordstrom, dropping Ivanka Trump‘s branded merchandise.

The so-called president used his personal and White House Twitter accounts to denounce the company for treating his daughter “unfairly.” Conway was on Fox “News” the next day urging people to “go buy Ivanka’s stuff.

“I’m going to give a free commercial here. Go buy it today everybody, you can find it online,” Conway said.

That goes way, way beyond what Truman did, and is far, far worse. Truman involved public resources only to the extent that he was living in the White House when he wrote the letter, and he did not pitch his hissy fit in public. Trump and Conway are using their bully pulpit—a term that they obviously misunderstand—to promote his daughter’s private business. And although Trump as president is exempt from ethics rules that prohibit that, Conway clearly is not.

Those rules—with which Conway, as a lawyer, ought to be familiar–forbid any executive branch employee from using the office “for his own private gain, for the endorsement of any product, service or enterprise, or for the private gain of friends, relations, or persons with whom the employee is affiliated in a nongovernmental capacity.”

At least one formal complaint has already been lodged with the Office of Government Ethics.

And here’s what the chief ethics counsel to President George W. Bush, Richard W. Painter, said about it, quoted in The New York Times:

“The events of the past week demonstrate that there is no intent on the part of the president, his family, or the White House staff to make meaningful distinctions between his official capacity as president and the Trump family business.”

Trump’s staff, he noted, “instead of trying to push him back on this, they’re jumping in this and shilling for the businesses alongside him.”

Can we count on Jeff Sessions, the new attorney general, to law down the law to Trump?

Perhaps when pigs are piloting 747s.

There are doubtlessly a lot of people who aren’t bothered by any of this. They’re those who either voted for the new regime, knowing and liking what it would be, or weren’t concerned enough to go and vote. They seem to include the Republicans running the Senate, which has yet to deny Trump anything.

But for the rest of us, which I think is a majority, this is the question:

How can we be expected to respect the office of president when its occupant doesn’t respect it himself?

The regime’s abuse of public office for private gain is far from the worst of it. Trump’s relentless attacks on the media and, now, the judiciary are the worst of it.

None of his predecessors, not even Richard Nixon, were so persistently thin-skinned, petulant, and heedless of the stature the presidency needs and deserves. Trump’s bombastic, childish, vainglorious outbursts are diminishing not only him, but the office.

If it were just about him being a crybaby, that would be bad enough.

But what he is doing—with calculation and malice, and no doubt with Steven Bannon’s encouragement—is to poison the public’s mind against the only two nonpartisan institutions, the courts and the media, that are willing and able to stand in the way of his abuses of power and his incipient dictatorship.

As it happens, the war on the media is a monumental act of ingratitude. Trump wouldn’t be in the White House had television not fawned on his every act and outrage as a candidate, had the newspapers not contrived to put his picture on every Page 1, had the media been willing earlier to call him out on his falsehoods, and had it not given him, in effect, a free ride against Hillary Clinton by portraying her, falsely, as his equal in sleaze.

Trump understood, as they did not, that it did not matter what they said about him so long as they said it.

Now it matters. It matters a lot. The case for impeachment already exists, and it is building hour by hour, day by day.


Martin Dyckman is a retired associate editor of the Tampa Bay Times. He lives in Asheville, North Carolina.

Paul Ryan, Mitch McConnell — why are you enabling Donald Trump?

An open letter to House Speaker Paul Ryan and Senate Majority Leader Mitch McConnell:


It was wisdom rather than whim that guided the founders of our nation in separating the powers of government with a system of checks and balances. As James Madison remarked in The Federalist 47, “the accumulation of all powers … in the same hands, whether of one, a few or many … may justly be pronounced the very definition of tyranny.”

Their faith in the future is being put to the test by current events in Washington that prompt me to ask: Have you lost your minds?  Are you as irresponsible as the madman in the White House? Why are you defaulting on the duty of the Congress to defend our democracy?

Why are you enabling Mr. Trump’s excesses?

I’m writing this letter Jan. 30, the anniversary of two world-changing events. One was the birth of President Franklin D. Roosevelt, who greatly honored the office that you are allowing the current occupant to disgrace. The other was that of Adolf Hitler attaining the chancellorship of Germany in 1933, despite not having won a majority in any election.

A month and a half later, Dr. Paul Joseph Goebbels, Hitler’s new propaganda chief, warned German newspapers against publishing criticism that could be used, as The Associated Press paraphrased it, “by oppositionists to the government’s detriment.”

“The press must be the keyboard on which the government can play,” he said. “Criticism will be allowed, but it must be expressed so that no enemy of the government at home or abroad may be enabled to seize upon such criticism to the government’s detriment. Cooperation between the government and the press is our aim.”

I don’t have to tell you what happened soon after to the German press.

Well, sirs, it hasn’t taken nearly that long for Mr. Trump’s propaganda minister, Steve Bannon, to tell The New York Times to shut up, for the president himself to indulge himself in infantile Twitter messages attacking the Times and other great newspaper, The Washington Post; for a committee chairman in your Congress to lecture the media on its duty to be the government’s mouthpiece; and for Kellyanne Conway, who is apparently the junior propaganda minister, to say that reporters who criticize Trump ought to be fired.

Doesn’t any of that concern you?

I have specific concerns about what Trump is doing and what you are not doing.

A case in point is your reported assurance that Mr. Trump’s great wall will be built, at extraordinary expense to the public in one form or another of direct or indirect taxation. That wall will be as abject a failure as France’s Maginot Line, and the only beneficiaries will be wall builders in the United States and tunnel builders in Mexico. The latter, as you should know, already have expertise in smuggling narcotics and people under our existing defenses. As deep as you build a wall, people will find ways around it. We have a long and essentially unguarded coastline. The Canadian border is open. Visas can easily be overstayed. The wall would be a failure not only practically but in the moral sense as well. History will come to regard that wall and its builders with the same contempt deservedly directed at the Soviet Union and its puppets in the former East Germany.

My second issue is your timid acceptance of the catastrophic incompetence and cruelty with which the president issued his executive orders against Muslim immigrants last Friday. That he picked Holocaust Remembrance Day to do so is an irony almost too painful to bear. The agencies that would have to carry out his abuse of executive power (and what has become of the distaste you expressed when President Obama exercised his?) were neither consulted nor forewarned in time to avert massive confusion at airports. Decent people holding legitimate green cards were treated as criminals. Families were sundered. And why were only certain countries singled out, excluding those where, by remarkable coincidence, Mr. Trump has been doing business? Why are people from Iraq subject to his ban when those from Saudi Arabia, the country of origin of most of the 911 terrorists, are not barred?  Don’t these inconsistencies bother you? Are you unconcerned by his unconstitutional preference for immigrants of one religion over all others?

Are you not frightened — frankly, I’m terrified — that he is excluding the Chairman of the Joint Chiefs of Staff and the Director of National Intelligence from the regular meetings of the National Security Council? And that in their place, he is installing his far-right adviser, Steven Bannon? It would seem that he wants to hear only from those who would inform and flatter his biases. In my opinion, the Congress should without delay provide by legislation for the permanent, full NSC membership of those officials, and find a way to keep the dangerous Mr. Bannon at a distance.

In my view, and that of others among whom we share concerns, you have decided to tolerate and even enable the administration’s dangerous conduct because of the short-term benefits that might accrue to the Republican Party. Yes, you might attain some policy goals that the candidate who won the popular vote would have blocked. But you are deluding only yourself if you think all this will rebound to the long-term benefit of your party. When America comes to its senses, the people will hold you along with Trump responsible for all the damage that needs to be undone. The greater the harm, the more you’ll be blamed for it.


Martin A. Dyckman


Martin Dyckman is a retired associate editor of the Tampa Bay Times. He lives in Asheville, North Carolina.

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