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It is a grade school commonplace that there is a pendulum swing back and forth between the political Right and Left.  Personally, I think a little back-and-forth is both good and inevitable, but it would be better if the swings were less violent.  What can provoke over-reaction is government over-reach to one side or the other–often due to someone having a tin ear.  

Because I don’t want to be accused of professorial lecturing or pontificating, I must admit that I have said some funny sounding things, particularly when I was young and starting out my career.  One of my favorite early gems was when I said, “The civil rights movement is like The Planet of the Apes.”  That really sounds bad and blatantly racist, but what I meant was that art is typically a reflection of the historical environment in which it is created.  Between 1968 and 1973 there were no less than five feature films in the Planet of the Apes series, followed by an adaptation for television.  This corresponded with the countercultural revolution of the 1960s, which included the civil rights movement and the protest against the Vietnam War.  I believed that the movies were a reflection in the mirror, but through a glass darkly.  Watch the first film and see the turnabout where an astronaut on top of the pecking order on Earth (played by Charlton Heston) suddenly becomes a slave who is thought to be too stupid to be able to speak until he says, in a fit of anger and frustration: “Take your stinking paws off me, you damn dirty ape.”

It is easy to sense that there might be an undercurrent of social commentary/satire in this material.  Is it a simple matter to translate the message?  No, the story is a fever dream full of emotions and contradictions (novel by Frenchman Pierre Boulle and adapted for film by the great Rod Serling).  Well, I more or less stand by that analysis, but it is obviously foolish to use the verbal shorthand that I did without further explanation.  I don’t blame some folks for thinking that my statement was ugly.  

But enough about me and my deft political skills.  What I have noticed is that some partisans on both sides have a tin ear in that they don’t know how their little “overreaches” sound to some–or even many–in the public.  A few examples will suffice.

Under the Affordable Care Act (ACA), employers were supposed to provide health insurance benefits that included contraception, but Catholic organizations balked.  One consequence was that the Obama/Holder Department of Justice sued some Catholic nuns who had dedicated their lives to caring for very elderly people.  This doesn’t sound good to me. Or in the modern idiom, the optics are bad.  It looks like a bunch of atheist brown shirts bullying some little old ladies.  And I say that as a lawyer who supports the rule of law.  

Also, who can forget the videotape of Representative Nancy Pelosi on the floor of the House talking about the ACA and how they did it because of, “the Word, the beautiful Word.”  Isn’t this part of the problem?  Intentions that don’t map onto the consequences they produce?  Rationalizations disconnected from reality?  And if I rack my brain a little, don’t liberals generally believe in the separation of church and state and the relative impropriety of “going Biblical” on the floor of the Congress?  As someone with nominally religious views, I was kinda surprised Pelosi didn’t turn into a pillar of salt right there on the spot.

Nevada cattle rancher Cliven Bundy didn’t want to pay federal grazing fees, partly under the theory that the federal administrative rules that required it didn’t go through Congress.  I don’t agree with his legal theory because it is well settled that if a legislative body delegates an appropriate amount of authority to the executive branch to create administrative rules and those rules go through the right process, they have the force and effect of law.  Mr. Bundy might not know that because he is not in the same business that I am in, but ignorance of the law is no excuse and non-lawyers should be wary of playing lawyer.  He also doesn’t realize the hair splitting that can go on around the question of what is a “tax” and what is a “fee.”  

As a lawyer, I support the rule of law and the men and women of law enforcement who are the thin blue line between civilization and chaos.  That said, for the federal government to send a couple of hundred men with guns to confront Mr. Bundy at his ranch was an obvious tin ear overreach.  Why?  Because if you pull a gun, you better be prepared to use it.  And if you are not, then don’t pull the gun.  It would be horrendously bad politics for a government law enforcement officer to kill a rancher over a monetary payment issue that might possibly be better handled by a lien to be satisfied on the sale of Mr. Bundy’s ranch when he dies.  

That having been said, while I know that many Americans have sympathy with the militias that showed up to protect Mr. Bundy, there are several examples in world history where militias have caused problems.  Fortunately, these are American militias with American values, but one still has to be a little wary of this kind of NGO (nongovernmental organization) activity.  The question for the federal government is whether their having to back down under pressure of the media attention from Fox News helped or hurt their credibility.  Kinda makes you look like you can’t think one step ahead of your next step, doesn’t it?

As shown in Michael Moore’s film Fahrenheit 911, President George W. Bush was at a fundraiser of the super-rich after the invasion of Iraq and he told a joke about not finding the weapons of mass destruction that he had used as the pretext for the invasion.  He looked around himself comically and said:  “Where are they?  Where are they?”   Well, some people died or were injured in that invasion and its aftermath, including American soldiers.  It sounded bad, as if Bush was happy to play with the lives of others and had zero empathy for anything outside himself.  Even I, who love humor, can’t say that this is even acceptable as a joke from the “decider” who caused this.  The U.S. Military is not a toy train set for a President to play with, it is designed to deter others from attacking us.  It was overreach to attack a country that hadn’t attacked us and posed no imminent risk to us.   Have people forgotten that in the planning stages, Secretary of Defense Donald Rumsfeld was asked about the idea of the invasion and he said “there aren’t any good targets in Afghanistan!”?  And while maintaining a desirable oil supply might be a coherent (albeit crass) rationale for deploying military force, Bush’s statement that Saddam Hussein, “tried to kill my dad,” just plain isn’t.

Senator Harry Reid took to criticizing the Koch Brothers on the floor of the United States Senate for their big campaign donations to Mitt Romney’s presidential campaign and other Republican political candidates all over the country.  This is an overreach because they are private citizens and there was no allegation that what they were doing was outside the law.  I don’t know the Koch Brothers and I do not necessarily endorse their views, but I don’t believe it is the role of the government to attack private citizens/business people who are not doing anything wrong on purely ideological grounds.   This is the same Senator who had said that a new visitors’ center was needed for Congress because you could smell the tourists from “over here.”  These are ordinary American citizens that he’s talking about who are visiting their nation’s capitol and doing something patriotic by visiting their political institutions.  He’s not just calling them “the great unwashed,” he’s actually calling them “stinky!”  And yes, there is videotape of this sterling example of the way to win friends and influence people.

Representative Maxine Waters said that she was “appalled” that the stock market had rallied in the wake of the election of President-elect Donald Trump.  She gets a tin ear award because she makes it sound as if: (a) the stock market is a “person” making a political statement; and (b) the stock market is wrong because it doesn’t immediately validate her personal, rather partisan, view of the world and the inherent correctness of her policies.  This view that the collective wisdom of the legislature is inherently superior to the collective wisdom of the market might be viewed as an overreach.  Although I give her credit for not going the extra step of accusing all of the stock market investors of being racist.

Part of the reason that our partisan politics are so heated is that we sometimes see each other as a toxic mixture of stupid and evil.  In my view, we’re not all like that and it could be that very few of us are like that.  But as long as prominent politicians push the outside of the partisan envelope and overreach,  regardless of the way it sounds or looks, the divisions in the country will seem bigger than they are. And it will be that much harder for us to come together and solve problems in a pragmatic way.

Thus, if you are a politician or a policy wonk designing something for a politician, please calibrate carefully.  It will be these small calibrations that help us to avoid tearing the country apart.  As chaos theory would put it, if a butterfly flaps its wings in Beijing, it might later rain in New York.  Don’t think of what you are doing as a tiny little thing you can get away with.  Sometimes the little things anger people the most because they should be the easiest to avoid.  As the Roman philosopher Seneca put it:  “He who has great power should use it lightly.”

 

The author formerly worked for the State of Hawaii as an insurance regulator, but his views as expressed here do not necessarily reflect the views of his former employer. He has a B.A. from Columbia University, a J.D. from UCLA, an M.B.A. from the University of Hawaii at Manoa, and a CPCU.

“Social engineering has failed, but I think that we can continue to improve incrementally through the free exchange of ideas and a relatively free market system.  As we do this, however, we must remain realistic.  We may not have to accept the world as it is, but we must take it as we find it.  You can’t get to utopia by living in a dream world.”  From page 164 of “No More Stupidtry: Insights for the Modern World,” by Lloyd Lim (Tate Publishing 2016).